Ocean and coastal law teaching materials

[From the U.S. Government Printing Office, www.gpo.gov]

Coastal Zone
Information
Center

~~ ~CENTER

Ocean and Coastal Law
Teaching Materials
Volume II: Coastal Law
Thomas J. Schoenbaum,
Ronald W. Merritt, Mary Ann D. Hogue,
S. Henri Johnson

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Price: $5.50

Copies are available from: UNC Sea Grant
1235 Burlington Labs
NCSU Campus
Raleigh, N.C. 27607

OCEAN AND COASTAL LAW
TEACHING MATERIALS
COASTAL ZONE
VOLUME II-COASTAL LAW INFORMATION CENTER

SEP 1 9 1977
Principal Investigator

Thomas J. Schoenbaum

Contributing Authors

Ronald W. Merritt (Chapter Five)
Mary Ann D. Hogue (Chapter Six)
S. Henri Johnson (Chapter Seven)

This work was sponsored by the Office of Sea Grant, NOAA, U. S. Dept.
of Commerce under Grant No. 04-6-158-44054, and the State Of North Carolina,
Dept. of Administration. The U. S. Government is authorized to produce
and distribute reprints for governmental purposes notwithstanding any
copyright that may appear hereon.

Property of CSC Library

: SEA GRANT PUBLICATION UNC-SG-77-09 April, 1977

~~~cm

U. S DEPARTMENT OF COMMERCE NOAA
COASTAL SERVICES CENTER
2234 SOUTH HOBSON AVENUE
CHARLESTON, SC 29405-2413

VOLUME 1C ZONE

8 ~~~~~~~~~~TABLE OF CONTENTS iFRAINCENTER

Page

Chapter Five. Public and Private Rights in Coastal Areas 1
Section 1. The Public Trust Doctrine: Note I
Shively v. Bowlby 3
Borax Consolidated Ltd. v. Los Angeles 10
The Daniel Ball 14
Marks v. Whitney 18
Note (a): Determining the Boundary Between Public
and Privately-Owned Lands 24
Note (b): Tests of Navigability for Determining
Title to the Beds of Waterways 25
Section 2. Impact of the Public Trust 27
Illinois Central Railroad v. Illinois 27
International Paper Co. v. Mississippi State High-
way Department 37
City of Long Beach v. Mansell 4].
Borough of Nepture City v. Avon 45
Wilbour v. Gallagher 50
Parmele v. Eaton 57
Section 3. Other Public Servitudes 61
United States v. Chandler-Dunbar Co. 61
State v. Twiford 68
Capune v. Robbins 70
ection 4. Changes in the Shoreline Area 73
section Hughes v. Washington 74
Oregon ex rel. State Land Board v. Corvallis Sand and
Gravel Co. 77
State v. Ashmore 83
Section 5. Public Access to Beaches 86
Seaway Co. v. Attorney General 86
Gion v. City of Santa Cruz; Dietz v. King 92
State ex rel Thornton v. Hay 98
In re Opinion of the Justices 103
Note: Beach Access 109

Chapter Six. Government Developmental and Regulatory Activities
in Coastal Areas 113
Section 1. Governmental Conservation and Development 113
A. Public Lands 113
The Marine Sanctuaries Act of 1972 115
Secretary of Commerce Marine Sanctuaries Guidelines 116

Page

B. The Corp of Engineers' Civil Works Activities 118
Save Crystal Beach Association v. Callaway 120
State of Minnesota, By Spannaus v. Hoffman 1].23
Section 2. Regulatory Activities 127
A. The Army Corps of Engineers 127
(i) � 10 of the Rivers and Harbors Act: Note 127
United States v. Moretti 128
Sierra Club v. Leslie Salts Co. 135
United States v. Sexton Cove 140
(ii) � 404 of the Federal Water Pollution Control Act:
Note 144
The Federal Water Pollution Control Act 145
United States v. Holland 146
Conservation Council of North Carolina v. Costanzo 152
Natural Resources Defense Council v. Callaway 160
Corps of Engineers' Permit Guidelines 160
(iii) Criteria for Permit Issuance 163
Zabel v. Tabb 164
Corps of Engineers Permit Guidelines 168
(iv) Permit Variations: Note 173
(v) Sanctions and Penalties: Note 174
The Rivers and Harbors Act of 1899 175
The Federal Water Pollution Control Act 175
United States v. Sunset Cove 177
(vi) State tInteraction in the Federal Regulafory Scheme 178
Cfd~~s f-~ Erigein s Permit Guidelines 1.79
B;i. ySae R ar! Kctivit ties: 181
North Carolina Dredge or Fill and Wetland Activities
Control Statutes 182
New York Freshwater Wetlands Act of 1975 185
New York Tidal Wetlands Act of 1975 ].87
Hamilton v. Diamond 190
River Defense- Committee v. Thierman 191
C. Deepwater Ports 194
The Deepwater Port Act of 1975 194
Note: Deepwater Ports in State Waters 204
Note: Onshore Effects of Deepwater Ports 204

Chapter Seven. Comprehensive Coastal Planning 232
Section 1. Federal Law 213
Coastal Zone Management Act of 1972 213
Section 2. State Law 231
California Coastal Act 231
North Carolina Coastal Area Management Act 265
Note: Other State Programs 284
Note: Criticism of Coastal Planning 289

-iii- ~~~~~Page

Section 3. Implementation of Coastal Planning 291
Ecological Determinants of Coastal Area Management 291
The Legal Implementation of Coastal Zone Manage-
ment: The North Carolina Model 293
Section 4. Constitutional Issues 312
Just v. Marinette County 312
Note on the Taking Issue 318
J. M. Mills, Inc. v. Murphy 321
Golden v. Planning Board 330
Construction Industry Assoc. of Sonoma Co. v.
City of Petaluma 342
Associated Home Builders of the Greater Eastbay,
Inc. v. Livermore 346

FOREWORD

This book of materials is a response to the need for a teaching tool
showing the inter-relationship between the law of the sea and coastal
legal problems. It is a reflection of the growing awareness that the
contemporary emphasis on new and improved uses of the resources of the
oceans will have a profound impact on the character of our coastal areas.
Conversely, coastal planning decisions will affect our choices in the
development of ocean resources.

The immediate stimulus for the compilation of these materials was to
provide a ready set of readings for students enrolled in the Ocean and
Coastal Law course at the University of North Carolina School of Law.
This book is the product of second-and-third-year law students working under
my supervision and direction. It is a totally volunteer effort, and its
successful completion is due to the high degree of interest and hard work
of the students involved. For my part, I have thoroughly enjoyed the
association with them both on a professional and a personal level.

I want to express my gratitude as well to Dr. B. J. Copeland of the
University of North Carolina Sea Grant Program for encouraging this project.

Thomas J. Schoenbaum,

CHAPTER FIVE

PUBLIC AND PRIVATE RIGHTS IN COASTAL AREAS

SECTION 1. The Public Trust Doctrine

The development of the public trust doctrine has followed the
variations in competing interests in the tidal area, including the
demands for navigational use, fishing, recreation and raw materials.
These demands vary with increases in population and commercial
needs. When demands rise, private ownership and exclusive use
conflict with the need for more widespread use and benefit by the
public. The history of the public trust doctrine reflects how legal
approaches have developed to cope with conflicts between these com-
peting interests in coastal lands.

The Romans developed the "natural law"? concept that use rights
in coastal areas were rights belonging to the public and that these
areas were 'common to all .1 This was necessary to protect their
great dependence upon navigation for trade and communication, as
well as fishing for food. Here the basis for the public trust was laid.
The state held title to coastal areas and navigable rivers, but only
as supervisor or trustee of the public rights of navigation and fishery,
which included the right to make fast in ports and spread nets upon
the beaches.

However, this concept of public rights,ithe _'jus publicum, waned
somewhat during the early Middle Ages. As Europe retrogressed in
terms of commerce and navigation, public rights were reduced by
growing ownership of coastal areas by local powers and feudal lords.
In a thinly populated England, the demand for public use was not strong
enough to stem the increase of private ownership and control.

With the signing of the Magna Carta, the trend shifted back
toward increased public rights - especially in the area of navigation
and fishing. English common law greatly expanded public rights in
response to changing economic and political influences. It became
established as common law that title to lands over which the tides
ebbed and flowed was in the King. Such lands were held by the King

1.For a complete discussion of relative Roman law. see Patrick
Deveney," Title, Jus Publicum, and the Public Trust: An Historical
Analysis," I Sea Grant L. J. 13,(1976).

in jus publicum, in trust for the commonuseand benefit of the
public. In other words, the King and any private owner held
these lands subject to superceding rights in the public.

The concept of sovereign ownership of the tidelands and
the related public trust doctrine became a part of American law
at the formation of the Union. Title to such lands passed from
the King to the original states. In this country also, the public
trust doctrine has been influenced by the political and economic
development of our nation. The doctrine has been modified and
extended in its effect and application. In the cases which follow,
notice the expansion of the application of the doctrine under the
concept of "navigability". Also notice the uses of this common
law doctrine to retrospectively determine ownership and use
rights and to prospectively protect our finite resources in the
face of growing demands.

The cases in Section 1 of this chapter illustrate the meaning
of the public trust doctrine as adopted in this country. Section 2
includes cases adjudicating public and private rights as they have
arisen in various fact situations under the impact of the public
trust. The matriqal's in Section 3 show how private rights; have
been Affectdd:(by other Ptiblic servitudes, while Section 4 examines
the effects of physical changes in the shoreline area. Finally,
Section 5 will illustrate the common law doctrines providing a
public right to cross private lands to gain access* to the beach area,
as opposed to rights to use the lands in question.

SHIVELY V. BOWLBY

United States Supreme Court, 1894

152 U.S. 1

MIR. Jusiroi,: GIRAY, after stating the case, delivered the
opinion of the court.

This case concerns the title in certain lands below high
water mark in the 'Columbia River in the State of Oregon;
the defendant below, now plaintiff in error, claiming under
the United States, and the plaintiffs below, now defendants
in error, claiming under the State of Oregon; and is in sub-
stance this James M. Shively, being the owner, by title
obtained by hin from the United States under tile act of
Congress of September 27, 1850, c. 76, while Oregon was
a Territory, of a tract of land in Astoria, bounded north by
the Columbia River, made a plat of it, laying it out into
blocks and streets, and including the adjoining lands below
highll water mark; and conveyed four of the blocks, one
above and three below that mark, to pelsons who conveyed
to the plaintiffs. The plaintiffs afterwards obtained from
the State of Oregon deeds of conveyance of the tide lands
in front of these blocks, and built and maintained a wharf
upon part of them. The defendant, by counter-claim, as-
serted a title, under a subsequent conveyance from Shively,
to somne of the tide lands, not included in his former deeds,
but included in the deeds from the State.
The counter-claim, therefore, depended upon the effect of
the grant from the United States to Shively of land bounded
by the Columbia River, and of the conveyance from Shively
to the defendant, as against the deeds from the State to the
plaintiffs. The Supreme Court of Oregon, affirming the
judgmelllt of a lower court of the State, held the counter-
claim to be invalid, and thereupon, in accordance with the
state practice, gave leave to the plaintiffs to dismiss their
complaint, without prejudice. Hill's Code of Oregon, 0� 246,
393.
The only matter adjudged was upon the counter-claim.
The judgment against its validity proceeded upon the ground
that the grant from the United States upon which it was
founded passed no title or right, as against the subsequent
deeds from the State, in lands below high water mark. This
is a direct adjudication against the validity of a right or
privilege claimed under a law of the United 'States, andl pre-
senlts a Federal question within the appellate jurisdiction of

this' court.. Rev. Stat. � 709. That jurisdiction has been:
repeatedly exercised, without objection or doubt, in similar
cases of writs of error to the state courts. Railroad Go.
v. Schurmeir, 7 Wall. 272; Packer v. Bird, 137 U. 8. 661;
Whnig/st v. United States Lanid Association,, 142 U. S. 161.
It was argued for the defendants in error that the ques-
tion presented was a mere question of construction of a grant
bounded by tide water, and would have been the same as it
is if the grantor had been a private person. But this is not
so. The rule of construction in the case of such a grant from
the sovereign is quite different from that which governs pri-
vate grants. The familiar rule and its chief foundation were
felicitously expressed by Sir William Scott: "All grants of
the Crowni are to be strictly construed against the grantee,
contrary to the usual policy of the law in the consideration
of grants; and upon this just ground, that the prerogatives
and rilghts and emoluments of the Crown being conferred'
upon it for great purposes, and for the public use, it shall
not be intended that such prerogatives, fights and emolu-
ments are diminished by any grant, beyond what such grant
by'necessary and unavoidable constructioh shall take away."
The Rcbeckah 1 C. Rol). 227, 2.30.
I. By the commo- la81, o title and the dominion of
the sea, and of rivers and arms of the sea, where the tide ebbs
and flows, 'ind of all tie iands below high water mark, within
tlie .jiiisltia6ll 6odf th'e 0C6ivn of England, are in tlie King.
Sucil wateif, aiid thle ilaiids vihich they civer, eitleir at all
tiOnes, or at least when the tide is in, are incapable of ordinary
and ptrivate occupaition, cultivation and implovement; and'
their natural and primary uses are public in their nature, for
hig(lhkvays of navigation and commerce, domestic and foreign,
and for the purpose of fishing by all the IKing's subjects.
Therefore the title, jus vprivatgua in such laends, as of waste
atnd unoccupied lands, belongs to the King as the sover-
eighn; and the dominion therieof, jus pU7tlicum, is vested in
hiln as the representative of the tlation and for the public
benefit. .
The great authority in the la* of England upon this subject
is Lord Chief Justice IHale, whose authorship of the treatise
.,1 ers'e YDa ris, sometimes questioned, has been put beyond
doubt by recent researches. Moore on the Foreshore, (3d ed.)
,18, 340, 413.
In that treatise, Lord IIale, speaking of "the King's right
of propriety or ownership in the sea and soil thereof" within
his jurisdiction, lays down the following propositions: "The
right of fishing in this sea and the creeks ahd arms thereof is
originally lodged in the Crown, as the right of depasturing
is originally lodged in the owner of the waste whereof he is
lord, or as the right of fishing belongs to him that is the owner
of a private or inland river." "But though the King is the
owner of this great waste, and as a consequent of his propriety
hath the primary right of fishing in the sea and the creeks
and arms thereof; yet the common people of England have
regularly a liberty of fishing in the sea or creeks or arms
thereof, as a public common of pisoary, and may not without

injury to their right be restrained of it, unless in such placed'
creeks or 11avicrable rivers, where either the King or some pai&
ticular subject hath gained a propriety exclusive of that coin.
iona liberty." "1 The shore is that ground that is between the
ordlinary high water and low water mvark. This (10th j)vifl(
'facei andI of common right belong to the King, both in the
shiore of the sea, and the shiore of the arms of the sea."Ia.
grave's Law Tracts, 11, I2,. And he afterwards explains:
,4Yet they way belong to the subject in point of propriety,
-not only by charter or grant, whereof there can be but little
dout, utalso byr prescriptiou or visage." "1 But though the'
subject may thus have the propriety of a navigpable river part~
of a, port, yet these cau tions are to he added, viz." "12d. That
tile people have a public interest, a jus e of passage
aund rep)assagre Avith their goods by water, and must not be
obstructed by nuisances." "For the jus p),ivahtvm of the
o ivner or proprietor is chargred with and subject to that jus
piublicuem which belongs to the King's subjects; as tile soil Of.
all highway is, which though in point of property it may be
a' prIiva~te man's freehold, yet it is charged with a publip
Interest of the people, which imay not be prejudiced:"r
damnilifed'" pp. 25, 3G.
So in the second part, .De Po'tibus !cua'is, Lord Hale says
that "1when. a port is fixed or settled by" "the license
charter of the King, or that which presumes and supplies1t
viz. custom and prescription;" "though thle soil and franhIs
or dominion thereof .primafacie, be in ~the King, or by deriva.'7"
tion from hitu in a subject; yet that jets privatum is cloth ed
and superinduced with a ju.q publicunb, wherein both- natives
and foreigners in peace with this kingdom are interested~~':, "i.,
reasoni Of common commerce, trade and intercourse." "But
the right that I am now speaking of is such at rigrht .h.t>
belongs to the King jurepr'eroyativca, and it is a distinct right.,:
*from that of propriety; for, as before I have said, though the
dominion either of franchise or propriety be lodged either~ by:,
prescription or charter in a subject, yet it is charged or affeotpd
with that ]U8 pulicu'm that belongs to all men., and so it'i 7
oharged or affected w ith that juse regiurn, or, right of preroga.Z
ti ve of the King', so far as the same is by law invested Interco""
King" Iargrave's Law Tracts, 84, 89.
In England, from thle tine of Lord Rale, it has 'been treafoli"1?"
assttled that the title in the soil of the sea, o fam ft
sea, below ordinary -high water mark,7 is in the Ki ng exep.
so far as an inudivid ual or a corporation has ac uired ri A ti ln'-`'
it by express grant, or by prescription or usage,4% 'ale'
Casc, :3 Keb. 242; S. C'. I Mod. 105 ; 3 Shop. Ab. 97; 1.
Di.Navig.ation, A, B; Bac. Ab. Prerogative, ID; .7he -ine,'
_161Sith, 2 Doug. 441; Attombey G6,710al V. Parllheter, 10
Pri ce, 378, 400, 401, 411, 412a, 464; Afto;iney General v.(h,n-~
b'r.v, 4 1). Mx. & Gr. 206, and 4 1). & J. 55; ffaleomson~ v, O'IDea,
011IL. Chis. 591, 618, 623; A~urne~y General v. nr
(1891) App. C as. 649; and that this title~Jus.,P)v(1Mtm, whether~
iii the King- or in a subject, is held subject to the public rIgt,
yt~p~diumof navigation and fishin.

It is equally well settled that a grant from the sovereign of
land bounded by the sea, or by any navigable tide water, does
not pass any title below high water mark, unless either the
languiage of the grant, or long usage under it, clearly indlicates
tat such vwaS the intention.
By the law of England, also, every building or wharf erected,
without license, below high water mark, where thie soil is the
King's, is a purpresture, and may, at the suit of the King,
either be demolished, or be seized and rented for his benefit, if
it is not a nuisance to navigation. Lord IHale, in IIargrave's
Law Tracts, 85; Mitf. P1. (4th ed.) 145; Bl'unlel v. Ceatterall,
5 13. & Ald. 268, 298, 305;

I. The: common law of England upon this subject, at the
time of the emigration of our ancestors, is the law of this
country, except so far as it has been modified by the char-
ters. constitutions, statutes or usages of the several Colonies
and States, or by the Constitution and laws of the United
States.
The English possessions in America were claimed by right
of discovery. Ilaving been discovered by subjects of the King
of England, and taken possession of in his name, by his author-
ity or witll his assent, they were held by the King as the rep-
resentative of and in trust for the nation; and all vacant
Iands, and the excluasive P{6wir to grant them, were vested in
iim. The vritois chariters granted by diffeient monarchs of
the sttiait dyiastiy fibr large tracts of territ6ry on the Atla-itic
coast conveyed to the grantees both the territory described
and the powers of governtnent, including the property and the -
dominion of lands under tide waters. And upon the Amneri-
can Revolution, all the rights of the Crown and of Parliament . ..
vested in the several States, subject to the rights surrendered
to the national government by the Constitution of the United "
States.
. -Tlie leading case in this court, as to the title and dominion
of tide waters and of the lands under theom, is Alirtibn v. Wad-
dell, (1842,) 16 Pet. 367.
It was in'giving thaereasons for holding-at.the ;iL. ';,W ,.
ters did not sever the.soil under nigablv water, au ;- :
public right of fishing, from the powersoEQ;f vertiii:? 'a ' ;
in speaking of the effect which grants of the ,title in tbhe' it
shore to others than the owner of the upland might h are 'nt
upon any peculiar rights supposed to be incident to his 0wn '-i'
ship, but upon the public and common rights in, and the bene-
fits and advantages of, the navigable Waters, which the-cole--
nists enjoyed ." for the same purposes, and to the same extent,
that they had been used and enjoyed for centuries in England,"
and which every owner of the upland therefore had in common
with all other persons, that Chief Justice Taney, in the passage
relied on by the plaintiff in error, observed: "Indeed, it could
not well have been otherwise; for the men who first formed
English settlements could not have been expected to encounter
the many hardships that unavoidably attended their emigrpa "
tion to the New World, and to people the banks of its bays

and rivers, if the land under the water at their very doors
was liable to immediate appropriation by another, as private !:
property; and the settler upon the fast land thereby excluded
from its enjoyment, and unable to take a shell fish from its
bottom, or fasten there a stake, or even bathe in its waters,
without becoming a trespasser upon the rights of another."
16i Pet. '414 . ..

III. The governments of the several Colorlies, with a view
to induce persons to erect wharves for the benefit of naviga-.
tion and commerce, early allowed to the owners of lands
bounding on tide waters greater rights and privileges in the
shore below high water mark, than they had in England.
But the nature and degree of such rights and privileges
differed in the different Colonies, and in some were created
by statute, while in others they rested upon usage only. , ,

The 'foregoig summary of the .laws; of the origina` S es '
- ews thatithere is no universal and uniform Slaw'.uplthe':
':- subject; but that each State has dealt:wit, the ands!iitl[
.:4- the tide waters within its borders aecording to its own views
':.' :of.justice and policy, ieserving its own control Over, 6Sc ,
O:.:gra.ntigt' rights therein to individuals or' orpoltiOa ons,
whether owners of the adjoining upland or not, as it considered
for the best interests of the public. Great caution, therefore,
is necessary in applying precedents in one State to cases aris-
.ing in another.
IV. The new States. admitted into the Union since' the
adoption of the Constitution have'the same rights as the
original States in the tide waters, and in the lands below
the hioh water mark, within their respective jurisdictions. -

IX. But Congress has never undertaken by general laws.
to dispose of such lands. And the reasons are not far to
seek.
As has been seen, by the law of England, the title in fee,
orjusprivatum, of the King or his grantee was, in the phrase
of Lord Hale, "charged with and subject to that j.sepublaoum
which belongs to the King's subjects," or, as he elsewhere
puts it, "is clothed and superinduced with a jus pubtioumn,
wherein both natives and foreigners in peace with this king-
dom are interested by reason of common commerce, trade and
intercourse." Hargrave's Law Tracts, 36, 84. In the words J
of Chief Justice Taney, " the country " discovered and settled
by Englishmen " was. held by the King in his public and regal
character as the representative of the nation, and in trust for
them;" and the title and the dominion of the tide watersia.4n.
of the soil uider tihem, in each colony, .passed by the6 roax'!I 2:
charter to the grantees as "a trust for the common use of the ''
new community about to be established;" and, upon the'.
American Revolution, vested absolutely in the eople of each

State "for their own-common use, subject only to the rights
since surrendered by the Constitution to the general govern-
inent." Martin v. TWaddell, 16 Pet. 367, 409-411. As
observed by Mr. Justice Curtis, "This soil is held by the State,
not only subject to, but in some sense in trust for, the enjoy-
ment of certain public rights." Smith v. Maryland, 18 How.
71, 74. The title to the shore and lands under tide water,
said Mr. Justice Bradley, "is regarded as incidental to the
sovereignty of the State - a portion of the royalties belonging
thereto, and held in trust for the public purposes of navigation
and fishery." Elapdin v. Jordan, 140 U. S. 371, 381. And
the Territories acquired by Congress, whether by deed of
cession from the original States, or by treaty with a foreign
country, are held with the object, as soon as their population
and condition justify it, of being admitted into the Union as
States, upon an equal footing with the original States in all
respects; and the title and dominion of the tide waters and
the lands under them are held by the United States for the
benefit of the whole people, and, as this court has often said,
in cases above cited, " in trust for the future States." Pollard
v. Iagan, 3 HIow. 212, 221, 222; We1ber v. Hiarbor Uomnis-
,sicnler8, 18 Wall. 57, 65; Knight v. Unfited States Land
A.8sociation, 142 U. S. 161:, 183.
The Congress: of the Unit.ed States, in disposing of the:
publid t<id haog :ditty alced upon the theory that those
lands, whether in the interior, or on the coast, above high
Water mark, may be taken up' by actual occupants, in order
to encourage the settlement of the country; but that the
navigable waters and the soils under them, whether within
or above the ebb and flow of the tide, shall be and remain
public highways; and, being chiefly valuable for the public
purposes of commerce, navigation and fishery, and for the
improvements necessary to secure and promote those purposes,
EdIln~ot be gr i-aded aay gi-urmgre FerPiebd f of terri1rial
government; but, unless in case of some international duty
or public exigency, shall be held by the United States'in trust
for the future States, and shall vest in the several States,
when organized and admitted into the Union, with all the
powers and prerogatives appertaining to the older States in
regard to such waters and soils within their respective jurisdio'
tions; in short, shall not be disposed of piecemeal to individ-
uals as private property, but shall be held as a whole for the
purpose of being ultimately administered and dealt with for
the public benefit by the State, after it shall have become
a completely organized conmtinity....

The conclusions from the considerations and authorities
above stated may be summed up as follows:
Lands under tide waters are incapable of cultivation or im -
provement in the manner of lands above high water mark.
They are of great value to the public for the purposes of coin-
inerce, navigation and fishery. Their improvement by indi-
viduals, when permitted, is incidental or subordinate to the
8

public use and right. Therefore the title and the control of
them are vested in the sovereign for the benefit of the whole
peol)le.
At common law, the title and the dominion in lands flowed
by the tide were in the King for the benefit of the nation.
Upon the settlement of the Colonies, like rights passed to the
grantees in the royal charters, in trust for the communities to
be established. Upon the American Revolution, these rights,
charged with a like trust, were vested in the original States"
within their respective borders, subject to the rights surren-
dered by the Constitution to the United States.
Upon the acquisition-of a Territory by the United States,
whether by cession from one of the States, or by treaty with
a foreign country, or by discovery and settlement, the same
title and dominion passed to the United States, for the benefit
of the whole people, and in trust for the several States to be
ultimately created out of the Territory.
The new States admitted into the Union since the adoption
of the Constitution have the same rights as the original States
in the tide waters, and in the lands under them, within their
respective jurisdictions. The title and rights of riparian or
littoral proprietors in' the soil below high water mark, there-
fore, are governed by the laws of the several States, subject to,
the rights granted to the United States by the Constitution.
The United States, while they hold the country as a Terri-
tory, having all the powers both of national and of municipal
government, may grant, for appropriate purposes, titles or
rights in the soil below high water mark of tide waters. But
they have never done so by general laws; and, unless in some
case of international duty or public exigency, have acted upon
tile policy, as most in accordance with the interest of the
41. people and with the object for which the Territories were
acquired, of leaving the administration and disposition of the
sovereign rights in navigable waters, and in the soil under
them, to the control of the States, respectively, when organ-
ized and admitted into the Union.
Grants by Congress of portions of the public lands within a
Territory to settlers thereon, though bordering on or bounded
by navigable waters, convey, of their own force, no title or
right below high water mark, and do not impair the title and
dominion of the future State when created; but leave the
question /of the use of the shores by the owners of uplands to
the sovereign control of each State, subject only to the rights
vested by the Constitution in the United States.
The donation land claim, bounded by the Columbia River,
upon which the plaintiff in error relies, includes no title or
right in the land below high water mark; and the statutes of
Oregon, under which the defendants in error hold, are a con-
stitutional and legal exercise by the State of Oregon of its
dominion over the lands under navigable waters.
Judgment aifrmed.

BORAX CONSOLIDATED LTD. V. LOS ANGELES

United States Supreme Court, 1935

296 U. S. 10

Petitioners claim under a federal patent which,;'ac-
cording to the plat, purported to convey land bordering
on the Pacific Ocean. There is no question that the
United States was free to convey the upland, and the pat-
ent affords no ground for holding that it did not convey
all the title that the United States had in the premises.
The question as to the extent of this federal grant, that
is, as to the limit of the land conveyed, or the boundary
between the upland and the tideland, is necessarily a
federal question. It is a question which concerns the
validity and effect of an act done by the United States;
it involves the ascertainment of the essential basis of a
right asserted under federal law. Packer v. Bird, 137
U. S. 661, 669, 670; Brewer-Elliott Oil Co. v. United
States, 2o TV. S. 77, 87; United States v. Holt Bank, 270
U. . S49, 5, J 6; `U/i&d Sta tes v. Utah, 283 U. S. 64, 75.
Rights and interests in the tideland, which is subject to
the sovereignty of the State, are matters of local law.
Barney v. Keolcuk, 94 U. S. 324, 338; Shively v. Bowlby,
supra, p. 40; Hardin v. Jordan, 140 U. S. 371, 382; Port
of Seattle v. Oregon & Washington R. Co., 255 U. S.
56, 63.
The tideland extends to the high water mark. Hardin
v. Jordan, supra; Shively v. Bowlby, supra; McGilvra v.
Ross, 215 U. S. 70, 79. This does not mean, as petitioners
contend, a physical mark made upon the ground by the
waters; it means the line of high water as determined by
the course of the tides. By the civil law, the shore ex-
tends as far as the highest waves reach in winter. Inst.
lib. 2, tit. 1, � 3; Dig. lib. 50, tit. 16, � 112. But by the
common law, the shore " is confined to the flux and refluix
of the sea at ordinary tides." Blundell v. Catterall, 5
B. & A. 268, 292. It is the land "between ordinary high
and low-water mark, the land over which the daily tides
ebb and flor. Wh'in,"therefore, the sea, or a bay, is named
as a boundary, the" line of ordinary high-water marlkils"
always intended where the common law prevais'.:e:.
United States v. Pacheco, 2 Wall. 587, 590.
The range of the tide at any given place varies fr:ii?
day to day, and the question is, how is the line of " ordi-. '
nary" high water to be determined? The range of the'

. . . . . 0

tide at times of new moon and full moon "is greater than
the average," as "high water then rises higher and low
water falls lower than usual." The tides at such times
are called " spring tides." When the moon is in its first
and third quarters, " the tide does not rise as high nor
fall as low as on the average." At such times the tides
are known as " neap tides." " Tidal Datum Plane," U. S.
Coast and Geodetic Survey, Special Publication No. 135,
p. 3,2 The view that "neap tides" should be taken as
the ordinary tides had its origin in the statement of Lord
Hale. De Jure Maris, cap. VI; Hall on the Sea Shore, p.
10, App. xxIII, xxIv. In his classification, there are " three
sorts of shores, or littora marina, according to the various
tides," (1) "The high spring tides, which are the fluxes
of the sea at those tides that happen at the two equi-
noxials"; (2) "The spring tides, which happen twice
every month at full and change of the moon "i; and :(3)
"Ordinary tides, or nepe tides, which happen between
the full and change of the moon." The last kind of shore,
said Lord Hale, "is that which is properly littus martis."
He thus excluded the " spring tides " of the month, as-
signing as the reason that "for the most part the lands
covered with these fluxes are dry and maniorable," that
is, not reached by the tides.
The subject was thoroughly considered in the case of
Attorney General v. Chambers, 4 De G. M. & G. 206. In
that case Lord Chancellor Cranworth invited 'Mr. Baron
Alderson and 1Mr. Justice Maule to assist in the deter-
mination of the question as to '`the extent of the right of
the Crown to the seashore." Those judges gave as their
opinion that the average of the "medium tides in each
quarter of a lunar revolution during the year " fixed the
limit of the shore. Adverting to the statement of Lord
Hale, they thought that the reason he gave would be a
guide to the proper determination. "What," they asked,
are "the lafids which for the most part of the year are
reached and covered by the tides?" They found that the
same reason that excluded the highest tides of the month,
the spring tides, also excluded the lowest high tides, the
neaps, for " the highest or spring-tides and the lowest high
tides (those at the neaps) happen as often as each other."
Accordingly, the judges thought that "the medium tides
of each quarter of the tidal period" afforded the best
criterion. They said: " It is true of the limit of the shore
reached by these tides that it is more frequently reached
and covered by the tide than left uncovered by it. For
about three days it is exceeded, and for about three days
it is left short, and on one day it is reached. This point
of the shore therefore is about four days in every week,
i. e. for the most part of the year, reached and covered
by the tides." Id., p. 214.

Having received - this opinion, the Lord Chancelli-
stated his own. He thought that the authorities had left
the question " very much at large." Looking at " the prin-
ciple of the rule which gives the shore to the Crown,"
and finding that principle to be that "it is land not
capable of ordinary cultivation or occupation, and so is;..
in the nature of unappropriated soil," the Lord Chancel-
lor thus stated his conclusion: " Lord Hale gives as his
reason for thinking that lands only covered by the high
spring-tides do not belong to the Crown, that such lands
are for the most part dry and maniorable; and taking
this passage as the only authority at all capable of guid-
ing us, the reasonable conclusion is that the Crown's
right is limited to land which is for the most part not
dry or maniorable. The learned Judges whose assistance
I had in this very obscure question point out that the
limit indicating such land is the line of the medium high
tide between the springs and the neaps.: All land below
that line is more often than not covered at high water,
and so may justly be said, in the language of Lord Hale,
to be covered by the ordinary flux of the sea. This can-
not be said of any land above that line." The Lord
Chancellor therefore concurred with the opinion of the
judges " in thinking that the medium line must be treated
as bounding the right of the Crown." Id., p. 217.3
This conclusion appears to have been approved in
Massachusetts.' Comnonwealth v. Roxbury, 9 Gray 45.1,
483; East Boston Co. v. Commonwealth, 203 Mass. 68,
72; 89 N. E. 236. See, also, New Jersey Zinc Co. v. Mor-
ris Canal Co., 44 N. J. Eq. 398, 401; 15 Atl. 227; Gould
on Waterss, p. 62.
In California, the Acts of 1911 and 1917, upon which
the City of Los Angeles bases its claim. grant the "tide-
lands and submerged lands" situated "below the line of
mean high tide of the Pacific Ocean."' Petitioners urge
that "ordinary high water mark" has been defined by
the state court as referring to the line of the neap tides.
We find it unnecessary to review the cases cited or to
attempt to determine whether they record a final judg-
ment as to the construction of the state statute, which,
of course, is a question for the state courts.
In determining the limit of the federal grant, we per-
ceive no justification for taking neap high tides, or the
mean of those tides, as the boundary between upland and
tideland, and for thus excluding from the shore the land
which is actually covered by the tides most of' the time.
In order to include the land that is thus covered, it is
necessary to take the mean high tide line which, as the
Court of Appeals said, is neither the spring tide nor the
neap tide, but a mean of all the high tides.

_ . _ _ _2

In view of the definition of the mean high tide, as given
by the United States Coast and Geodetic Survey," that
"Mean high water at any place is the average height of
all the high waters at that place over a considerable
period of -im~;Jt and the further observation that "from
theoretical considerations of an astronomical character"
there should be a "a periodic variation in the rise of
water above sea level having a period of 18.6 years," 7
the Court of Appeals directed that in order to ascertain
the mean high tide line with requisite certainty in fixing
the boundary of valuable tidelands, such as those here in
question appear to be, " an average of 18.6 years should
be determined as near as possible." We find no error in
that instruction.
The decree of the Court of Appeals is
Affirmed.

THE DANIEL BALL

United States Supreme Court, 1870

77 U. S. 557

APPEAL from thle Circuit Court fdr the We rtD' riU
of Michigan, the ease being thus:
The act of July 7th, 1838,"~ provides, !in its second a8ction ,
that it shall not be law~ful fo the ownerastec.ep~i
of ally Vessel, propelledt in whole or in part by steam,2 to
transport any mcreljandise or passengrers upon t'Vas
lakes, rivers, or others navigable waters of tile United States,"
after the Ist of October (if' hat year, without havill9 first
obtaincd fromr the proper 6fficer a license un1der. existing
laws; that -for every violation of this enactment the MVw iir
or owners of the, veSsel shiil 1,6rfeit and pay to tile Unbited
States tile sumi of five hundred dollars8 and that for thiis
suni the vessel engagyed shall be liable, and muay be Aieiied
and proceedcd against summnarily by libel in the Di'striot
Court of the U~nited States.
The aet of Augulst. 80th, 1852,t~ Which is a~rholidato"i'y of'
the act of'July 7th, 18-8, provides for the inspeictionl of '.es-
Mes Liropeilld in ilvlbok or iii pd1t by kteah ntild earlyluig
jphssenger,$, and thel adiehvr to thle eollcctli' of thle Ati~tril
8i '41 beirtifiie,'[ of sucl in-spectiou1 hefolore 'I license, reglibtr,
or enrvolmen0,t, nnder eithei of thle 'acts, Calli be grit�~dj, and
declares th it iftiny veIssel of this kind is Ilavigat cd "Wvith.
passeligers on board, without complyinly with li the ti ui of
the act., the owners and thec Vessel shall be su.jecet to ithe
penalties prescribed by thle second 8'ection of the a tbo 88.

InI March, 1868, the Daniel Ball, it vessel "propelleU by
ste-am, of:0ono hundred and: twventy-three tons bu: dei, Wz a
engaged in navigating Granld %Yovr, in -the1 State o0f Michi-
gran, between. the cities of Grand 11apids and Grandj aven,
and in thec transportation 'of merchandise aind pa~soig{ers
between those places, without halving beeill inspected or
licensed underl the laws of the United States; and to ree'over
the penalty, provided for want of such inspectidnl and illse,
the United States filed a libel in the District'Courtfib~tho
Weston-I District of Michiganl.
The libel~ as amnendpd,'dsecri'bed Graild River,'as-joniv:
gable water of' the United States1; aind, in addito t'Ie
employment stated above, alleged that in schel omlynn
the steamer transported maerchandise, shipped on board o
her, destine fo'prsadpaces inI States other th~n- the
State of michigan, and was thus engagcd in eornmeiz~- be-
tween the States. ,
The answer of the owvners, whlo aRppeared in' th&' ease,
admitted s~ubstantially the employment; of 'tile steamrn ras
alleged, but set tip as a defence that Grand River was Lot a

navig'[le water of' tile United States, anld that tile Ste wmer
4~ ~ ~ ~ ~~~~~~~jg~ cii enM~ed solely in doiomstic trade andl c-onlnerce" and
wvas not eugaged inl trade or commerce between two or more
States, or lin ally tradle by reason of whiclh shie was subject
to the niavigation laws of the United States,, or was required
to he( inspected arid licensed.
It xi~as admitted, by stipu~lation of the parties, that the
steamier was employed inl the navig-ation of Grand River be-
twecil tile cities of Grand Rlapids alld Grand llaven,'and inl
the transportation of nirerhan disc and passengrers between
those pALaceS; that She wa.'s not enrolle1d andA licenlsed for the
coasting- trade ,; thlat sonicl of tile goods thlat She Shipped at
Grau~d Rapids and utrr'ied to Grand 11aven wverie destined
and marked for places ill other States than Miellio-aui anld
that 50o1n0 of thle goods which she shipped at Grand Havenl
came from other States and wvere destined f'or places within
that State.
It Was also admitted that the steamer was so constructed
as to draw only twvo feet of water, and was incapable of nay
igating the waters of Lake Mfichigan ; thiat she was a conm-
11101 carrier between the cities inamed, but did not run inl
eonMCO iicnWith or ill continuation of any line of steamers
or vessels onl the lake, oi- any line of railway inl thle State,
although there were various lines of steaflers and other
vessels running from places ill other States to Gratid flaveii
carrying. rilerchladis(e5, and -, linec of railway was 11,1111il11"
from Detroit which touched at both of thle cities namred.
Mr. Justice FIELD, after stating the case, delivered the
opinion of the court, asi follows:-
Two, questions are presented in this case for ou~r' Jeter%

First: Whether thle steamner was ~at the time desigpated
in the(, libel engaged in transporting nf~rchandise and' pas-
sengers oil a nav~ig-able water of the Unjited States N~Itlii1
the nicanilig of the acts of Congress; and, 4..
'Second:? Whether 'those n ts ae applicable t ...
act lace i-th4a Oie
engaged as a common carrier. betweenpae jb,0Ml
State, wh~en a portion. of the eir~-handise trall56r(44o edb
her is cestined to places ill other St~ites,6 or cdffi-sf
places without the State., shellot running illoiet~i*t
or inl continuation of any laine of steamers or ~ otw;vls
or ally railway fine leading to or from allothe tt
Uponl the tirst of these questions we elitetan10dbt
The doctrine of thle conmmon law, as to the iiavigability of
waiters has 11o applicationl inl this Country. THere the'- ebb
anld flow of the tide do 1]ot constitllte the usual test", as Ilk
England, or anly test at all of thle navigability of waters.
There iio waiters are navigable in fi-t:, or at. least to any eon-
sidlerablcj extent, whlich are not subject. to the tide, find fromt
this circumstance tide, water and uavigable waiter tilere Sig-
niily substantially the samen( thingr. But ill this counitry tile

(Ose i~Wixidolv (lifle-rent. Sonic of our rivers arc as niavigable
for tinly handreds of mifles above Is they are below thle
limits of fidIe wateOr, Tid solke of thiem arve navigable foir
grVeat dlistallces by ]jrr ve(,s ejs, winch(~1 nrIc not evoln affected
by the fide ait aiiy lioiit dunring their entire lcingth. * A
diffevetnt test must, thjerefore, be applied to determine the
niivigability of our rivers, and that is found inl their navigil-
ble capacity. Thiose rivers mutilq be regarded as public navi-
gable, rivers inl law whichi arc navigrable inl fact. Anid they
art- navigallble ill Jact whien they are used, or arc susceptibl
of behicg used, in their ordiiiary condition, as highways for
comnmerce, over which trade and travel are or may be con-
dlicted inl the customary mnodes of trade anid travel onl water.
And( they constitute navigaible wtaters of the United States
within the meaning of the acts of Congress, lin contr'adistinc-
tiea fi'oul tile navigable waters of the States, when they form-1
inl their ordinary condition by themiselves, or by unitling with
other watersI a colltinued highway ovier which commerce is
or Tuav be carried oil with other States or foreignh countries
in thle cuistormary mo-1des iln which suhel comminerce is coll-
d.lictCel by waiter-.
-j f,:we- a'pply .thii6 te~t to Gralld .Rit~er, the CnIi~~~V
fo~~~vII th.i st be r`6garde -t a-,ha~e ~ tbe
-tnited States.- From-tbe conceded factrs it theii6 4 tli
tran i& capable1 4bearing t1' nea mr of. OM urehu
stg.rs as-i Grandbl -6fd;: 'dstne f . -]li4
the lak it fors a coninued ighw for) comerce0,otl
wit othr State an ihfrig fbr6, n stu
brogh unde the' direct control-o of Cogesi4t1eec
inof) b its commerciallpiv
Tha, ts poue auh e al Lakporae Mihgai -IAJ l) tio fWrI

protection or advancement of' either interstate or-foreign
comm11erce, and for that ptupose suchl legislation As will
insure thre convenient and safe navigation of all the nlavilva-
ble waters of the United States, whether that legislation
consists in requiring the iemoval of obstructions- . 1:heir
use, iii prescribing the formi and size of the Vessels employed
upon them, or inl subjecting the vessels to iiuspection k and
licenlse, in order to ,insure their proper (cotstruction anid
equipment. "1The power to regulate commerc," this court
said inl Gia?.(m v. Philadelphia,* "1cornlprebhendt3 tblibr
for that purpose, arid to thle extent Ileeessary, of ail naviga-
ble waters of tile United States wtiichi arc accessible from a
State other than those in which they lie. Forthi- puirpose
they fire the public property of the nation, tand subject-, to ll
the requisite legislation of Congrress."
But it is contended that the steamier Daniiel Ball waq,,only
enlgaged in the internal conimerce of tria State of MW lguuy
and was not, therefore, required to be inspected oi' llcehsed,
eveni if it be conceded theat Grand Rtiver is a navigable Water
of the United States; anid this brings us to the consideration
of the second questiol] presented. .-

There is undoubtedly anlll internal commcrce whichl i sulb I:-
ject to the control of the States. ' The power delegiatc a'td::- ;
Congress is limited to commerce "amo r tile several States,"
witkh.foreign nations, and -with the Indian tribes; ' t:ilim-
itation rnecessarily ekcludes friom Federal eontitoitl ail om-
meree not thus designated, and of course that commerce
which. is carried on entirely within the litnits of-'/ State,
and does not extend to or affect other States,* � n this
case it is admitted that the steamer was engaged. iff'ehip-
ping and transporting down Grand River, goods destined
and marked for other States than Michigan, and in reeeiving
and transporting up the river goods brought within the
State from without its limlits; but inasmuch as her agency
in the transportation was entirely within the limits of the
State, and she (lid not run in connection withll, or in continua-
tion of, any line of vessels or riailway leading to other States,
it is contended that she was engaged entirely in domestic
commerce. But this conclusion does not follow. So far as
she was employed in transporting goods destined for other
States, or goods brought front without the limits of Michi-
ganl and destined to places witlin that State, she was engaged
in commerce between the States, and however limnited that
commerce may have been, she was, so flar as it wvent, subject
to the legislation of Congress. She waas employed as an in-
strument of that commerce; for whevlever a conmmodity has
begun to move its an article of trade from one State to
another, commerce in that commodity between the States
has commenced. The fact that several different and inde-
pendent agencies are employed in transporting the conl-
mu)dity, some acting entirely in one State, and some acting
through two or more States, does in no respect affect the
character of the transaction. To the extent in which oelch
algentcy acts in that transportation, it is subject to the regu-
lation of Congress.

MARKS V. WHITNEY

Supreme Court of California, 1971

491 P. 2d 374

McCOMB, Justice.
This is a quiet title action to settle a . burdens in quieting title to tidelands. This:
boundary line dispute caused by overlap- matter is of great public importance, par-'"
ping and defective surveys and to enjoin ticiularly in view of -population pressures,
defendants (herein "Whitney") from as- demands for recreational property, and the
serting any claim or right in or to :the' increasing developmint of seashore and
property of plaintiff Marks. The unique waterfront property, -A present declaration
feature here is that a part of Marks' prop- that the title of Marks in these tidelands is
erty is tidelands acquired under an 1874 burdened with a public easement may avoid
patent issued pursuant to the Act of March needless future litigation.
28, 1868 (Stats.1867-1868, c. 415, p. 507); Tidelands areproperly those lands
a small portion of these tidelands adjoins lying between the lines of mean high and
almost the entire shoreline of Whitney's low tide (City of Long Beach v. Mansell
upland property. Marks asserted complete' (1970) 3 Cal.3d 462, 478, fn. 13, 91 Cal.Rptr,
ownership of the tidelands and the right to
fill and develop them. Whitney opposed o -7 23, ;46 P.2d 423) 'c.'ered and uncovered
V,-." siuicl;sively- by -the 'bb and flow thereof
the ground that this would cut off *his , suesively by the ebb Boarnd flow thereor
rights as a littoral owner and as a member , (PPle ex relS;a, Board of Harbor
of the public in these tidelands and the ' om rs v.' Kerber l!t8) z152 Cal. 731, 733
navigable waters covering them. He re- -:93 P 878). The trla court found that the
navigable waters e~everif tj ifif. He re-: .
, portion' of Marks-.ifids here under con-
quested a declaration in the decree that' porti f Marks lands here uder con-
Marks' title was burdened with a public ': derolconstitutes a part of the Tide
trust easement; also that it was burdened lands of Tomales Bay, that at all times it
with certain prescriptive rights claimed'by has been, and now is, subject to the daily
Whitney. ebbi and flow of the tides in Tomales Bay,
'om I:that; the ordinary high tides in the hay
The trial court settled the coI Ion � overflow and submerge this portion of his
boundary line to the satisfaction of the; lands, and that Tomales Bay is a navigable
parties. However, it held that Whitney had, body of water and an arm of the Pacific
no "standing" to raise the public trust issue i Ocean.
and it refused to make a finding as to 1 s 1,I:.
whether the tidelands are so burdened., It '.j This land wis patented as tidelands
did find in Whitney's favor as to a prescrip- to. Marks' predecessor in title. The patent
tive easement across the tidelands to main-.' 'iof May 15, 1874, recites that it was issued
tain and use an existing seven-foot widi by t ieGovernor of California "by virtue of
wharf but with the limitation that "Such i ':aiuthirity in me vested" pursuant to
rights shall be subject to the right of Marks":' "Statutes enacted from time to time" for
,to use, to fill and to develop" the tidelands the "Sale and Conveyance of the Tide
and the seven-foot wide easement areaso Lands belonging tp, te Stote by virtue of
long;as the Whitney "rights of access and her soereignty." :(Emphasis added.)
ingress and egress to and from the deep - The' governing statute was the act of
waters of the Bay shall be preserved" over March 28, 1868, entitled "An Act to pro-
this strip. . X vide for the management and sale of the
i- i i 'lands belonging to the State." By its terms
Questions: First. Are these tidelands it repealed all other. laws relating to the
subject to the public trust; if so, should the, sale of swamp and 'overflowed, salt-marsh
judgment so declare? and tidelands. Theses laws, including the
Yes. Regardless of the issue of ':. Act of March 28, -68, were codified:in
Whitney's standing to raise this issue the a former Political Codce"ections 3440-349$.
court may take judicial notice of public trust .

They were explicitly and expansively con- .waters :for anchoring, standing, or other
sidered by this court entirely separate from purposes. (See Bohn v. Albertson (1951)
the restrictions contained in Article 15, 107Cal.App.2d 738, 238 P.2d 128; Forestier
sections two and three, of the State Con- v. Johnson, supra,; 164 Cal. 24, 127 P. 156;
stitution (enacted in 1879)-In Forestier v. Munninghoff v. Wisconsin Conservation
Johnson (1912) 164 Cal. 24, 127 P. 156 and Comm. ,(1949) 255 Wis. 252, 38 N.W.2d
People v. California Fish Co., supra, 166 712; Jackvony v. Powel (1941) 67 R.I. 218,
Cal. 576, 589-598, 138 P. 79. Prior to the 21 A.2d 554; Nelson v. De Long (1942)
issuance of this patent it was held that a 213 'Minn. 425, 7 N.W.2d 342; Proctor v.
patent to tidelands conveyed no title Wells (1869) 103 Mass. 216.) The public
(Kimball v. Macpherson (1873) 46 Cal. 103; has the same rights in and to tidelands.
People ex rel. Pierce v. Morrill (1864) 26 The public uses to which tide-
Cal. 336); or a voidable title (Taylor v. lands are subject are sufficiently flexible to
Underhill (1871) 40 Cal. 471). It was not encompass changing public needs. In ad-
until 1913 that this court decided in People i ministering the trust the state is not bur-
v. California Fish Co., supra, 166 Cal. 576, dened with an outmoded classification
596, 138 P. 79, 87, that "The only practicable l favoring one mode of utilization over
theory is to hold that all tideland is included, another ](Colberg, Inc. v. State, 67 Cal.2d
but that the public right was not intended 408, 421-422, 62 Cal.Rptr. 401, 432 P.2d
to be divested or affected by a sale of tide- 3.) There is a growing public recognition
lands under these general laws relating alike that one of the most important public uses
both to swamp land and tidelands. Our of the tidelands--a use encompassed within
opinion is that * * * the buyer of land the tidelands trust-is the preservation of
under these statutes receives the title to the those lands in their natural state, so that
soil, the jus privatum, subject to the public they may serve 'as ecological units for
right of navigation, and in subordination to scientific study, as open space, and as en-
the right of the state to take possession and vironments which provide food and habitat
use and improve it for that purpose, as it for birds and marine life, and which favor-
may deem necessary. In this way the ably affect the scenery and climate of the
public right will be preserved, and the ; area, It is not necessary to here define
private right of the purchaser will be given . precisely all the public uses which encun-
as full effect as the public interests will ber tidelands.
permit." ' "[T]he state in its proper administration
p.The tidelands embraced in these lof the trust may find it necessary or ad-
statutes extend from the Oregon line to visable to cut off certain tidelands from
water access and render them useless for
Mexico and include the shores of bays and water access and render them useless for
navigable streams as far up as tide water trust purposes. In such a case the state
goes and until it meets the lands made through the Legislature may find and de-
swampy by the overflow and seepage of termine that such lands are no longer use-
fresh water streams. (People v. California fil for trust purposes and free them from
the trust. When tidelands have been so
Fish Co., supra, at pp, 591, 596, 138 P. 79.) the trustand hae no
No issue is here presented of swamp or
overflowed lands. These are true tidelands subject to the constitutional prohibition for-
within,-the meaning of these statutes, the bidding alienation-they may be irrevoca-
wpatenthe a of May 15, 1874, and the public bly conveyed into absolute private owner-
patent of May 15, 1874, and the public
trust doctrine. They are, therefore, sub- ship." (City of Long Beach v. Mansell,
ject to a reserved easement in the state for sUpra, 3 Cald 462, 482, 91 Cal.Rptr. 23, 37,
trust purposes.
trust purposes. 476 P.2d 423, 437.)
Public trust easements are traditionally The power of the state to control,
defined in terms of navigation, commerce regulate and utilize its navigable water-
and fisheries. They have been held to in- ways and the lands lying beneath them,
clude the right to fish, hunt, bathe, swim, when acting within the terms of the trust, is
to use for boating and general recreation absolute (People v. California Fish Co.,
purposes the navigable waters of the state, supra, 166 Cal. p. 597, 138 P. 79), except as
and to use the bottom of the navigable limited by the paramount supervisory

power of the federal government over navi- There istabsolutcly no merit in
gable waters (Colberg, Inc. v. State, supra, Marks' contention that as the owner of the
67 Cal.2d 416-422, 62 Cal.Rptr. 401, 432 jts priva(tum under this patent he may fill
P.2d 3). We are not here presented with and develop his property, whether for navi-
any action by the state or the federal gov- gational purposes or not; nor in his con*
ernment modifying, terminating, altering tention that his past and present plan for
or relinquishing the jus publicunr in these development of these tidelands as a marina
tidelands or in the navigable waters cover- have caused the extinguishmcnt of the pub-
ing them. Neither sovereignty is a party lic casement. Reclamation with or without
to this action. This court takes judicial prior authorization from the state does not
notice, however, that there has been no of- ipso facto terminate the public trust nor
ficial act of either sovereignty to modify render the issue moot. (Newcomb v. City
or extinguish the public trust servitude up- of Newport Beach, 1936, 7 Cal.2d 393,
on Marks' tidelands. The State Attorney 4(2, 60 P.2d 825; Atwood v. Hammond
General, as amicus curiae, has advised this (1935) 4 Cal.2d 31, 40-411, 48 .2d 20.)
court that no such action or determination
has been made by the state. A proper judgment for a patentee
of tidelands was determined by this court
We are confronted with the is- in People v. California Fish Co., supra, 166
sue, however, whether the trial court may Cal. at pp. 598-599, 138 1'. at p. 88, to be
restrain or bar a private party, namely, that he owns "the soil, subject to the ease-
Whitney, "from claiming or asserting any ment of the public for the public uses of
estate, right, title, interest in or claim or navigation and commerce, and to the right
lien upon" the tidelands quieted in Marks. of the state, as administrator and controller
The injunction so made, without any limita- of these plublic uses' and the public trust
tion expressing the public servitude, is therefor, to enter upon and possess the
broad enough to prohibit Whitney frowm same for the preservation and advance-
asserting or in any way exercising public ment of the public uses, and to make such
trust uses in these tidelands and the navi- i' changes and improvements as may be
gable waters covering them in his capacity deemed advisable for those purposes."
as a member of the public. This is beyond Second: Daes Whitney have "standing"
the jurisdiction of the court. It is within
the province of the trier of fact'to deter- to request t ie count 1o recognice and de-
aet are the public trust easement on Marks'
mine whether any particular use made or
asserted by Whitney in or over these tide-
lands would constitute an infringement Yes. The relief sought by Marks re-
either upon the jus privatunt of Marks or suited in taking away from Whitney rights
upon the jous publicitrn of the people. It to which he is entitled as a member of the
is also within the province of the trier of general public. It is immaterial that Marks
fact to determine whether any particular asserted he was not seeking to enjoin the
use to which Marks wishes to devote his public. The decree as rendered does en-
tidelands constitutes an unlawful infringe- join a member of the public.
ment upon the jus publicumr therein. It Members of the public have been per-
is a political question, within the wisdom :mitted to bring an action to enforce a
and power of the Legislature, acting with- public right to use a beach access route,
in the scope of its duties as trustee, to de- (Dietz v. King (1970) 2 Cal.3d 29, 84 Cal.
termine whether public trust uses should Rpir. 162, 465 P.2d 50); to bring an action
be modified or extinguished (see City of to quiet title to private and public easements
Long Beach v. Mansell, supra, 3 Cal.3d at in a public beach (Morse v. E. A. Robey'
p. 482, fn. 17, 91 Cal.Rptr. 23, 476 P.2d and Co., Inc. (1963) 214 Cal.A'pp.2d 464, 29
423), and to take the necessary steps to free Cal.Rptr. 734); and to bring an action to
them from such burden. ' In the absence restrain improper filling of a' bay and se-
of state or federal action the court may cure a general declaration of the rights
not bar members of the public from law- of the people to the waterways and wild-
fully asserting or exercising public trust : life areas of the bay (Alameda Conservation
rights on this privately owned tidelands. Association v. State of Cal. (9 Cir. 1971)

437 F.2d 1087, 1095-1098). Members of in width), so long as such rights of ac-
the public have been allowed to defend a cess . . . shall be preserved over
quiet title action by asserting the right to ahd across said area seven feet in width
use a public right of way through private 'and MARKS may use and convey the same
property (The Diamond Match Co. v, for use, for all purposes which do not
Savercool (1933) 218 Cal. 665, 24 P.2d defeat or substantially interfere with use
783). They have been allowed to assert by WHITNEY of such area for the above
the public trust easement for hunting, fish- stated purposes."
ing and navigation in privately owned tide-
lands as a defense in an action to enjoin - A littoral owner has a right in
such use (Forestier v. Johnson, supra, 164 the foreshore adjacent to his property sep-
Cal. 24, 127 P. 156), and to navigate on shal. arate and distinct from that of the gen-
low navigable waters in small boats (Bohn etil public (Gould on Waters, 3d ed., �
v. Albertson (1951) 107 Cal.App.2d 738, 149). This is a property right and is
238 1.2d 128). valuable, and although it must be en-
| e t to .. joyed in due subjection to the rights of
Whitney had standing to raise,,)
this issue. The court could have raised ! the publ.ic, it c anno t be arbitrarily or
this isse on is. " , capriciously destroyed. (Yates v. Mil-
this issue on its own. "It is new well
settled that the court may finally deter- waukee (1870) 77 U.S. 497, 504, 10 Wall.
497, 504, 19 LEd. 984.) A littoral owner
mine as between the parties in a quiet title
action all of the conflicting claims regard- can enjoin as a nuisance interference by
ing any estate or interest in the property." a private person with this right. (San
(Hendershott v. Shipman (1951) 37 Cal.2di Francisco Sav. Union v. R. G. R. Petro-
190, 194, 231 P.2d 481, 483.) Where the leum & Mining Co. (1904) 144 Cal, 134,
interest concerned is one that, as here, i 135-139, 77 P. 823.) A littoral owner has
constitutes a public burden upon land to been held to have the right to build a
which title is quieted, and affects the de- pier out to the line of navigability; a
fendant as a member of the public, that i right to accretion; a right to navigation
servitude should be explicitly declared. (the latter right being held in common
with the general public) (see 65 C.J.S.
Third: Does Whitney have rights as a ' Navigable Waters �� 61-69; 56 Am.Jurt.
littoral ouwner which are improperly en- Waters, � 233); and a right of access from
joined by the judgment appealed from? every part of his frontage across the fore-
Yes. In its memorandum opinion the shore (see Coulson & Forbes on Waters
trial court expressed its views as to the (6th ed. 1952) pp. 69-70). This right of
private rights between these parties. It access extends to ordinary low tide both
stated that it would find and adjudge that i when the tide is in and when the tide is
the littoral owner does not own a private out. (San Francisco Sav. Union v. R.
right of access or fishery across all of the G. R. Petroleum & Mining Co., supra,
tidelands adjoining his property; that, 144 Cal. 134, 77 P. 823.)
however, he may own a reasonable right This littoral right is of course
of access; that here it would be found burdened with a servitude in favor of the
that he had exercised such right and his state in the exercise of its trust powers
right of access is therefore confined to over navigable waters (Colberg, Inc. v.
the wharf area; and that as between State, supra, 67 Cal.2d 408, 420, 62 Cal.
Marks and Whitney this has ripened into Rptr. 401, 432 P.2d 3; City of Newport
an easement in that specific area only. Beach v. Fager (1940) 39 Cal.App.2d 23,
The judgment quieted an easement by pre- 102 P.2d 438). The state has not exercised
scription in Whitney as against Marks "for iits power in this instance. The effect
access and ingress and egress to and from of this judgment is to limit Whitney's
the deep waters of Tomales Bay for pe- right to bathe, sunbathe, fish, etc. to the
destrians, fisheries, navigation and other Ipier area of the tidelands, to restrict his
purposes. Such right shall be subject lateral use of the pier for boating, etc.,
to the right of MARKS to use, to fill and and to debar him. from the use of any
to develop . . . (including those part of his 344 foot' frontage along these
within the above defined area seven feet !tidelands except for the seven-foot wide

pier area.
The quieting of a prescriptive easement Leod v. Reyes ('1935) 4 Cal.App.2d 1443,
in Whitney without a determination in the 154, 40 P.2d 839.) i.:
decree as to the effect thereof on the The retention of the words "along the
public rights in these tidelands, creates line of ordinary low water" in the de-
further confusion both as to the nature scription in the decree would have been
of Whitney's rights as littoral owner, apart more explicit and would have avoided
from prescription, and as to the rights some of the problems encountered on the
of the public appeal. The failure to include these words
While the authority given Marks "to use, however does not refute the fact that the
to fill and to develop" the tidelands, ex- judgment describes a natural monument,
cept as limited by the wharf easement, i. e., "the line of ordinary low water."
was not intended by the trial court to place The seaward boundary is a common
any limitation upon the state or federal boundary line as between Marks and the
government, in the absence of a declara- state, owner of the adjoining submerged
tion of the rights of the public or of the i lands Section 6463 of the Public Re-
state as trustee it is subject to misinter- sources Code authorizes any person claim-
sources Code authorizes any person claim-
pretation, i. e., as giving a blanket and ing title under a patent of tideland is-
otherwise unqualified' authorization to sued by the state to bring suit against
Marks to fill and develop. the state, or against the state with others,
Fourth: Does the failure of the court to to quiet title or otherwise determine the
include the words "along the line of or- validity of such patent or establish bound-
dinary low water" in the lmetes and bounds j aries. Section 6357 authorizes the State
description of the seaward boundary of I Lands Commission to establish ordinary
the tidelands indicate that such line is low-water mark or ordinary high-water
fixed in location? mark by agreement, arbitration or action
Notand.ngo However, Whitney has to quiet title whenever it is deemed ex-
t.. N11o. However, Whitney has
no standing to complain of this omission. pedient or necessary. The state was not
made a party hereto and no action has
As a littoral owner, as a member of the
public entitled to exercise certain rights, been taken y the State Lands Com
sion to change the seaward boundary of
and as the ouwner of a wharf easement, these tidelands from the description given
he can assert rights in and over the tide- in the original patent. Shold there be
lands but only to the line of ordinary the original patent. Should there be
low water. The seawbard boulndary of, any dispute as to where the actual line
1 of low water lies which would make un-
the tidelands is not a common boundary o
certain spatial limitations on the exercise
as to him. The judgment in question
by members of the public or littoral own-
omits the description of the natural monu-
omets"aon the detion of tinatr a l low ers of rights across these tidelands, the
ment "along the line of ordinary low
,, .alog t h e l ineocommission has jurisdiction to take the
water" but otherwise describes the courses
necessary steps to define such limits and
and distances in almost identical 8 lan-
protect such rights,. or litigation could be
guage with the descriptions contained in protght pursiant to section 663 of the
the original patent and in the official sur-
Public Resources Code.'
veys.
Judgment is'reversed :and remanded for
The courses and distances as proceedings not inconsistent with this opin-
given constitute a meander line which, for ion
surveying convenience, depicts the line of
ordinary low water. Where a meander WRTGHT, C. J,; and PETERS, T6.
line is used, the actual location of the BRINER, MOSK, BURKE and SULLI-
line of ordinary low water and not the VAN, JJ., concur.
calls is controlling. (de Watson v. San
Pedro, etc., R. R. Co. (1915) 169 Cal. 520,
521, 147 P. 140; People v. Ward Redwood
Co. (1964) 225 Cal.App.2d 385, 389, 37
Cal.Rptr. 397; Den v. Spalding (1940)
39 Cal.App.2d 623, 627, 104 P.2d 81; Mc-

APPENDIX

! i' e
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23 E

NOTE

(a) Determining the Boundary Between Public and Privately-Owned
Lands

Determination of coastal boundaries is essential to the develop-
ment of an effective coastal management program. Coastal boundaries
have been generally defined by vertical datums, which are planes of
reference for elevations based on the average rise and fall of the tide. 1
Since, in many areas, the shore has a very gradual slope, a small
vertical change may cause a large horizontal movement of a boundary
on the ground.

At common law, the sovereign owned the sea, the seabed and the
foreshore, although prior to the 16th century, much of the foreshore
was appropriated by private owners. 2- In the 17th century, Lord Hale,
in his treatise De Jure Marts, claimed that lands beneath tidal waters
and the foreshore could only be acquired by express grant from the
sovereign. He distinguished between fresh water streams, which he
argued should belong to the riparian owner and the seabed, which be-
longed to the sovereign and was incapable of private ownership. Lord
Hale's position became established in the common law by the end of
the 17-th century and since that time, the "ordinary high water mark"
has been the common law boundary between public and privately-owned
coastal lands. 3

However, confusion arose as to the exact meaning of the term
"ordinary high water mark". Lord Hale described three varieties of
tides in his De Jure Marts, and the courts struggled with the problem
of deciding how to determine this boundary. One consideration was
whether the land in question was dry enough of the time to be of use
to the upland owner for improvement or cultivation. If. so, the upland
owner may argue that this was above the "ordinary high water line"
and was properly his land.

The confusion carried over into the American courts until the
Borax decision in 1892 (reprinted above). In that case, the "ordinary
high tide mark" was construed as the "mean high tide line", as deter-
mined by the average of all high tides measured over an 18. 6 year
cycle, as determined by the Department of Commerce, Coast and
Geodetic Survey. This has the effect of vesting ownership in the

'Maloney and Ausness, "The Use and Legal Significance of the Meain
High Water Line In Coastal Boundary Mapping," 53 North Carolina
L. Rev. 185, 195 (1974)
2Id. at 198.
3d-. at 200.

private hands of the upland owner of those lands above the reach
of the tides the majority of the time. Consider how realistic this
is in relation to existing use patterns in coastal areas.

Since the Borax decision involved the determination of the sea-
ward boundary of a federal patent or grant, its applicability to other
- ~~~~cases arising upon different facts is open to question. While that
case represents a progressive solution, the law of each state must
be examined to determine its acceptance or rejection of this federal
common law concept.

(b) 'Pests of Navigability For Determining Title to the Beds
of Waterways

Since a mean high tide line can, in theory, be found wherever
tidal effects occur, the question arises as to whether that should be
used to determine the boundaries in every such location. In other
words, where should the state assert title to the beds of waterways,
whatever the method of determining boundaries? The answer may
depend upon the shape of the shoreline as well as the test applied by
that state to determine "navigability"1 for title purposes. Where the
coastline is relatively straight, the mean high tide line may be an
appropriate boundary. However, where there are tidal basins or
rivers which cause indentations in the shoreline, the question be-
comes what test will be used to determine the extent of public owner-
ship. Similarly, what test is to be applied to inland waterways, to
determine whether the state or federal governments have title or
control of the bed of the waterway or the regulation of its use?
- ~~~Note that the concept of "navigability" has become a pluralistic
legal concept. A watercourse may be navigable in a factual sense,
for recreation or for commerce, but the term navigability may
have a different significance when used in the context of a "naviga-
ble servitude" or in the case of a determination of title.

Two possible tests of navigability for title purposes are:
(1) The "ebb and flow" test: This test has been applied to assert
state ownership of the beds of all waterways affected by the
ebb and flow of the tides.
'(2) The "inavigability-in-fact" test: The physical requisites for
navigability-in-f act may be defined by statute or the common
law in a given state.

These tests may be combined so that any waterway which is
subject to the ebb and flow of the tide is presumptively conside red
navigable for title purposes. Such a combined test would give a
state the maximum extent of ownership, ie. those waterways in the

coastal area which are affected by the tides as well as inland
waterways which are navigable-in-fact.

The federaltest of navigability was announced in The Daniel
Ball, 77 U. S. 557 (1870), but since that time the concept has been
expanded in scope. One such expansive statement of the federal
test of navigability is contained in United States v. Appalachian
Electric Power Co., 311 U.,S. 377 (1940), as follows:

To appraise the evidence of navigability on the natural
condition only of the waterway is erroneous. Its availability
for navigation must also be considered. "Natural and ordi-
nary condition" refers to volume of water, the gradients,
and the regularity of the flow. A waterway, otherwise suit-
able for navigation, is not barred from that classification
merely because artificial aids must make the highway suit-
able for use before etamhjla1 navigation may be undertaken.
. . . . .
Although navigabilitylfo fix ownership of the river bed or
riparian rights is determined . . . as of the formation of
the Union in the original states or the admission to state-
hood of those formed later, navigability, for the purpose
of the regulation of ommrnerce, may later arise. An ana-
loagy is found in adfiiiralty jurisdiction, which may be ex-
tended over places formerly nonnavigable. There has never
been doubt that the navigability referred to in the (admiralty)
cases was navigability despite the obstruction of falls,
rapids, sandbars, carries or shifting currents. The
plenary federal power over commerce must be able to
develop with the needs of that commerce which is the
reason for its existence.

SECTION 2. Impact of the Public Trust

ILLINOIS CENTRAL RAILROAD V. ILLINOIS

146 U.S. 387 (1892)

Ma. JusonE FHIELD delivered the opinion of the ouirt,

This" suit was commenced on the 1st of March, 1883, in a .
Circuit Court of Illinois, by an information or bill in. equity,
filed by the Attorney General of the State, in the nane of -
its people against' the Illinois Central Railroad Company, a'
corporation created under its laws, and against the city of
Chicago. The United States were also named as a party
defendant, but they never appeared in the suit, and -it was
impossible to bring them in as a party without their consent.
The alleged grievances arose solely from the acts and claims
of the railroad company, but the city of Chicago was made
a defendant because of its interest in the subject of the litiga-
tion. The railroad company filed its answer in the state court
at the first term after the commencement of the suit, and
upon its petition the case was removed to the Circuit Court
of the United States for the Northern District of Illinois.
In May following the city appeared to the suit and filed its
answer, admitting all the allegations of fact in the bill. A
subsequent motion by the complainant to remand the case to
the state court was denied. 16 Fed. Rep. 881, The plead-
ings were afterwards altered in various particulars. An
amended information or bill was filed by the Attorney Gen-
eral, and the city filed a cross-bill for affirmative relief against
the State and the company. The latter appeared to the cross-
bill and answered it, as did the Attorney General for the
State. Each party has prosecuted a separate appeal.
The object of the suit is to obtain a judicial determination
of the title of certain lands on the east or lake front of the
city of Chicago, situated between the Chicago River and Six-
teenth street, which have been reclaimed from the waters of
the lake, and are occupied by the tracks, depots, warehouses,
piers and other structures used by the railroad company in
its business; and also of the title claimed by the company to
the submerged lands, constituting the bed of the lake, lying
east of its tracks, within the corporate limits of the city, for
the distance of a mile, and between the south line of the south
pier near Chicago River extended eastwardly, and a line
- 'extende:n the same direction, from the south 'i
near the compan 's round-house and machine shosip ::'
determination of the title of the company will t i;:
consideration of its right to construct, for its own busflne:t'a;4
well as for public convenience, wharves, piers and::d6-k:i [iL
the harbor. ::' ":,:is
We agree with the court below that, to a clear unde~rta4d::
iug of the numerous questions presented in this case, it was.
necessary to trace the history of the title to the several parcels

of land claimed by the company. And the court; in its'
elaborate opinion, (33 Fed. Rep. 730,) for that purpose referred
to the legislation of the United States and of the State, and
to ordinances of the city and proceedings thereunder, and
stated, with great minuteness of detail, every material provi-
sion of law and every step taken. We have with great 'care:
gone over the history detailed and are satisfied with its entire
accuracy. 'It would, therefore, serve no useful purpose. to
repeat what is, in our opinion, clearly and fully narrated. In
what we may say of the rights of the railroad company, of
the State, and of the city, remaining after the legislation and
'proceedings taken, we shall assume the correctness of that
history.
The State of Illinois was admitted into the Union in 1818
on an equal footing with the original States in all respects.
Such was one of the conditions of the cession from Virginia
of the territory northwest of the Ohio River, out of which the
State was formed. But the equality prescribed woiild have
existed if it had not been thus stipulated. There can be no
distinction between the several States of the Union in the
character of the jurisdiction, sovereignty and dominion which
they may possess and exercise over persons and subjects within
their respective limits. The boundaries of the State :were
prescribed by Congress and accepted by the, State in its origi;
nal Constitution. They are given in the bill. It is suffloent_
for our purpose to observe that they include within 'their
eastern line-all that portion of Lake Michigan lying east of
the main land of theoState and the middle of the lake south
of latitude forty-two degrees and thirty minutes.
::It i]s'the settled law of this country that the owfrthip'of: ard
dominion and -sovereignty over lands covered by' tide.wters,
within the limits of the several States, belong to the respective
States within which they are found, with the consequeit right
to use or.. dispose of any portion thereof, when. tl in be
done without substantial impairment of the interle'rof the
public in the waters,, and subject always to the paramount
right of Congress to control their navigation so far as may be
necessary for the regulation of commerce with foreign nations
and among the States. This doctrine has been often announced
by this court, and is not questioned by counsel of any of the
parties. Pollard's Lessee v. llagan, 3 How. 212; Weber v.
,Hlarbor Comqmissioners, 18 Wall. 57.
The same doctrine is in this country held to be applicable
to lands covered by fresh water in the Great Lakes over which
is conducted an extended commerce with different States and
foreign nations. These lakes possess all the general character-
istics of open seas, except in the freshness of their waters, and
in the absence of the ebb and flow of the tide. -In other
respects they are inland seas, and there is no reaso!-or prin.
ciple for the assertion of dominion and sovereignty over and
ownership by the State of lands covered by tide waters that
is not equally applicable to its ownership of and dominion and
sovereignty over lands covered by the fresh waters of these
lakes.

The Great Lakes are not in any appreciable respect affected
by the tide, and yet on their waters, as said above, a large
commerce is carried on, exceeding in many instances the en-
tire commerce of States on the borders of the sea. When the
reason of the limitation of admiralty jurisdiction in England
was found inapplicable to the condition of navigable waters
in this country, the limitation and all its incidents were dis-
carded. So also, by the common law, the doctrine of the
dominion over and ownership by the crown of lands within
the realm under tide waters is not founded upon the existence
of the tide over the lands, but upon the fact that the waters
are navigable, tide waters and navigable waters, as already
said, being used as synonymous terms in England. The
public being interested in the use of such waters, the possession
by private individuals of lands under them could not be per-
mitted except by license of the crown, which could alone
exercise such dominion over the waters as would insure free-
dom in their use so far as consistent with the public interest.
The doctrine is founded upon the necessity of preserving to-.
the public the use of navigable waters from private interrup-
tion and encroachment, a reason as applicable to navigable
fresh waters as to waters moved by the tide. We hold, there-
Kforeq.taat the same doctrine as to the. dominioni 'aEnd esov-
ereignty over and ownership of lands' under the 'ai'i'lega !-
waters of the Great Lakes applies, which obtains at the: 'om-
mon law as to the dominion and sovereignty over anld owner-
ship of lands under tide waters on the borders of the sea, and
that the lands are held by the same right in the one case as in
the other, and subject to the same trusts and limitations.
Upon that theory we shall examine how far such dominion,
sovereignty and proprietary right have been encroached
upon by the railroad company, and how far that company
had, at the time, the assent of the State to such encroach-
ment, and also the validity of the claim which the company
asserts of a right to make further encroachments thereon by
virtue of a grant from the State in April, 1869..,
We do not deem it material, for the determination of any
questions presented in this case, to describe in detail the exten-
sive works of the railroad company under the permission given
to locate its road within the city by the ordinanoe.s 'Itsiffl-
cient to say that when this suit was commenced it had Olimed,"'
from the waters of the lake a tract, two hundred feet' iinwidth;,
for the whole distance allowed for its entry within the city,
and constructed thereon the tracks needed for its railway, with
all the guards against danger in its approach and crossings as.
specified in the ordinance, and erected the designated break-
water beyond its tracks on the east, and the necessary works
for the protection of the shore on the west. Its works in no
respect interfered with any useful freedom in the use of the
iwaters of the lake for commerce, foreign, interstate or domes-
tic. They were constructed under the authority of the law by
the requirement of the city.as a condition of its consent that the
company might locate its road within its limits, and cannot be
regarded as such an encroachment upon the domain of the
State as to require the interposition of the court for their
removal or for any restraint in their use.

The railroad company never acquired by the reclamation
from the waters of the lake of the land upon which its tracks
are laid, or by the construction of the road and works con-
nected therewith, an absolute fee in the tract reclaimed, with
a consequent right to dispose of the same to other parties, or
to use it for any other purpose than the one designated - the
construction and operation of a railroad thereon with one or
more tracks and works in connection with the road or in aid
thereof. The act incorporating the company only granted to
it a right of way over the public lands for its use and control,
for the purpose contemplated, which was to enable it to survey,
locate, and construct and operate a railroad. All lands, waters,
materials and privileges belonging to the State were granted
solely for that purpose. It did not contemplate, much less
authorize, any diversion of the property to any other purpose.
The use of it was restricted to the purpose expressed.
We shall hereafter consider what rights the company
acquired as a riparian owner from its acquisition of title to
lands on the shore of the lake, but at present we are speaking
only of what rights it acquired from the reclamation of the
tract upon which the railroad and the works in connection with
it are built. The construction of a pier or the extension of
any land into navigable waters for a railroad or other pur-
poses, by one not the owner of lands on the shore, does not give
the builder of such pier or extension, whether an individual
or corporation, any riparian rights. Those rights are incident
to riparian ownership. They exist with such ownership and
pass with the transfer of the land. And the land must not only
be contiguous to the water, but in contact with it. Proximity
without contact is insufficient. The riparian right attaches to
land on the border of navigable water without any declaration
to that effect from the former owner, and its designation in a
conveyance by him would be surplusage. (See Gould on
Waters, � 148, and authorities there cited.)
The riparian proprietor is entitled, among other rights, as
held in Yates v. .Kilwaukee, 10 Wall. 497, 504, to access to the
navigable part of the water on the front of which lies his land,
and for that purpose to make a landing, wharf or pier for his
:owni ~se:o:f&'i-theb use of the publio, subject to hsucq'..;h
rulesannd-t6gultions as the legislature maypeseri4he
protection of the-rights of the public. -. . :
We proceed to consider the claim of the railroad- company
to the ownership of submerged lands in the harbor, and the.
right to construct such wharves, piers, docks and othet works
therein as it may deem proper for its interest and business.
The claim is founded upon the third section of the act of the
legislature of the State passed on the 16th of April, 1869, . �
The section in question has two objects in view: one was to
confirm certain alleged rights of the railroad company under
the grant from the State in its charter and under and "by vir-
tue of its appropriation, occupancy, use and control, and the
riparian ownership incident" thereto, in and to the lands sub-
merged or otherwise lying east of a line parallel with and four

hundred feet east of the west line of Michigan Avenue, in frac-
tional sections ten and fifteen. The other object was to grant
to the railroad company submerged lands in the harbor.
The confirmation made, whatever the operation claimed for
it in other respects, cannot be invoked so as to extend the
riparian right which the company possessed, from its owner-
ship of lands in sections ten and fifteen on the shore of the
lake. Whether the piers or docks constructed by it, after the
passage of the act of 1869, extend beyond the point of naviga-
bility in the waters of the lake, must be the subject of judicial
inquiry upon the execution of this decree in tlie court below.
If it be ascertained upon such inquiry and determined that such
piers and docks do not extend bevond the point of practicable
navigability, the claim of the railroad company to their title
and possession will be confirmed; but if they or either of them
are found on such inquiry to extend beyond the point of such
navigability, then the State will be entitled to a decree that
they, or. the one thus extended, be abated and removed.to the
extent shown, or for such other disposition of the extension as,
upon the application of the State and the facts established,
may be authorized by law.
As to the grant of the submerged lands, the act declares
that all the right and title of the State in and to the submerged
lands, constituting the bed of Lake Michigan, and lying east of
the tracks and breakwater of the company for the distance of
one mile, and between the south line of the south pier extended
eastwardly and a line extended eastwardly from the south line
of lot twenty-one, south of and near to the round-house and
machine shops of the company "are granted in fee to the rail-
road( company, its successors and assigns." The grant is accom-
panied with a proviso that the fee of the lands shall be held
by the company in perpetuity, and that it shall not have the
power to grant, sell or convey the fee thereof. It also declares
that nothing therein shall authorize obstructions to the harbor
or impair the public right of navigation, or be construed to
exempt the company from any act regulating the rates of
wharfage and dockage to be charged in the harbor.
This clause is treated by the counsel of the company as an
absolute conveyance to it of title to the submerged lands, giv-
ing it as full and complete power to use and dispose of the
same, except in the technical transfer of the fee, in any nmanner
it may choose, as if they were uplands, in no respect covered
or affected by navigable waters, and not as a license to use the
lands subject to revocation by the State. Treating it as such
a conveyance, its validity must be determined by the consider-
ation whether the legislature was competent to make a grant
of the kind.
The act, if valid and operative to the extent claimed, placed
under the control of the railroad company nearly the wie: of
the submerged lands of the harbor, subject only to the liirita-'
tions that it should not authorize obstructions to the harbor or
impair the public right of navigation, or exclude the legislature
from regulaing the ratesof wharfage or dockage to be charged.

With these limitations the act put it in the power of the com-
pany to delay indefinitely the improvement of the harbor, or
to construct as many docks, piers and wharves and other
works as it might choose, and at such positions in the harbor
as might suit its purposes, and permit any kind of business to
be conducted thereon, and to lease them out on its own terms,
for indefinite periods. The inhibition against the technical
transfer of the fee of any portion of the submerged lands was
of little consequence when it could make a lease for any period
and renew it at its pleasure. And the inhibitions against
authorizing obstructions to the harbor and impairing the pub-
lic right of navigation placed no impediments upon the action
of the railroad company which did not previously exist. A
corporation created for one purpose, the construction and oper-
ation of a railroad between designated points, is, by the act,
converted into a corporation to manage and practically control
the harbor of Chicago, not simply for its own purpose as a
railroad corporation, but for its own profit generally. . .
The question, therefore, to be considered is whether the leg-
islature was competent to thus deprive the State of its owner-
ship of the submerged lands in the harbor of Chicago, and of'
the consequent control of its waters; or, in other words,
whether the railroad corporation can hold the lands and con-
trol the waters by the grant, against any future exercise of
power over them by the State.
That the State holds the title to the lands under the naviga-
ble waters of Lake Michigan, within its limits, in the same
manner that the State holds title to soils under tide watei, by
the common law, we have already shown, and that title neces-
sarilyv carries with it control over the waters above them
whenever the lands are subjected to use. But it is a title
different in character from that which the State holds in lands
intended for sale. It is different from the title which the
United States hold in the public lands which are open to pre-
emption and sale. it is a title held in trust for the people of
the State that they may enjoy the navigation of the waters,
carry on commerce over them, and have liberty of fishing
therein freed from the obstruction or interference of private
parties. The interest of the people in the navigation of the
waters and in commerce over them may be improved in many
instances by the' erection of wvharves, (locks and piers therein,
for which purpose the State may grant parcels of the sub-
merged lands; and, so long as their disposition is made for
such purpose, no valid objections can be made to the grants.
It is grants of parcels of lands under navigable waters, that
may afford foundation for wharves, piers, docks and other
structures in aid of commerce, and grants of parcels which,
being occupied, do not substantially impair the public interest
in the lands and waters remaining, that are chiefly considered
and sustained in the adjudged cases as a valid exercise of legis-
lative power consistently with the trust to the public upon
which such lands are held by the State. But that is a very
different doctrine from the one which would sanction the abdi-
cation of the general control of the State over lands under the

navitabiewaters of an entire harbor or bay, or of, sea or
lake. Such abdication is not consistent with the exercise of
that trust which requires the government of the State" to pre-
serve such waters for the use of the public. The trust devolv-
ing upon the State for the public, and which can only be
discharged by the management and control of property in
which the public has an interest, cannot be relinquished by a
transfer of the property. The control of the State for the
purposes of the trust can never be lost, except as to such par-
cels as are used in promoting the interests of the public therein,
or can be disposed of without any substantial impairment of
the public interest in the lands and waters remaining. It is
only by observing the distinction between a grant of such par-
cels for the improvement of the public interest, or which when
occupied do not substantially impair the public interest in the
lands and waters remaining, and a grant of the whole property
in which the public is interested, that the language of the
adjudged cases can be reconciled. General language somne-
times found in opinions of the courts, expressive of absolute
ownership and control by the State of lands under naviga-
ble waters, irrespective of any trust as to their use and dis-
position, must be read and construed with reference to the
special facts of the particular cases. A grant of all the lands
under the navigable waters of a State has never been adjudged
to be within the legislative power; and any attempted grant
of the kind would be held, if not absolutely void on its face,
as subject to revocation. The State can no more abdicate its
trust over property in which the whole people are interested,
like navigable waters and soils under them, so as to leave them
entirely under the use and control of private parties, except in
the instance of parcels mentioned for the improvement of the
navigation and use of the waters, or when parcels can be dis-
posed of without impairment of the public interest in what
remains, than it can abdicate its police powers in the adminis-
tration of government and the preservation of the peace. In
the administration of government the use of such powers may
for a linited period be delegated to a municipality or other
body, but there always remains with the State the right to
revoke those powers and exercise them in a more direct man-
ner, and one more conformable to its wishes. So with trusts
connected with public property, or property of a special char-
acter, like lands under navigable waters, they cannot be placed
entirely beyond the direction and control of the State.
The harbor of Chicago is of immense value to the people of
the State of Illinois in the facilities it affords to its vast and
constantly increasing commerce; and the idea that its legisla-
ture can deprive the State of control over its bed and waters
and place the same in the hands of a private corporation created
for a different purpose, one limited to transportation of passen-
gers and freight between distant points and the city, is a propo-
sition that cannot be defended.
The area of the submerged lands proposed to be ceded by
the act in question to the railroad company embraces some-

thing more than a thousand acres, being, as stated by counsel,
more than three times the area of the outer harbor, and not
only including all of that harbor but embracing adjoining sub-
merged lands which will, in all probability, be hereafter in-
cluded in the harbor. It is as large as that embraced by all
the m'erchandise docks along the Thames at London; is much
larger than that included in the famous docks and basins at
Liverpool; is twice that of the port of Marseilles, and nearly
if not quite equal to the pier area along the water front of the
city of New York. ' And the arrivals and clearings of vessels
at the port exceed in number those of New York, and are
equal to those of NIew York and Boston combined. Chicago
has nearly twenty-five per cent of the lake carrying trade as
compared with the arrivals and clearings of all the leading
ports of our great inland seas. In the year ending June 3),
1886, the joint arrivals and clearances of vessels at that port
amounted to twenty-two thousand and ninety-six, with a ton-
nage of over seven millions; and in 1890 the tonqage of the
vessels reached nearly nine millions. As stated by counsel,
since the passage of the Lake Front Act, in 1869, the population
of the city has increased nearly a million souls, and the in-
crease of commerce has kept-pace with it. It is hardly con-
ceivable that the legislature can divest the State of the control
and Ni'anagement of this harbor and' vest it absolutely in a
private corporation. Surely an act of the legislature. transfer-
ring the title to its submerged lands and the power claimed by
the railroad company, to a foreign State or nation would be
repudiated, without hesitation, as a gross perversion of the
trust over the property under which it is held. So'would a
similar transfer to a corporation of another State. It would
not be listened to that the control and management of the
harbor of that great city - a subject of concern to the whole
people of the State- should thus be placed elsewhere than in
the State itself. All the objections which can be urged to such
attempted transfer may be urged to a transfer to a private cor-
poration like the railroad company in this case.
Any grant of the kind is necessarily revocable, and the exer-
cise of the trust by, which the property was held by the State
can be resumed at any time. Undoubtedly there may be ex-
penses incurred in improvements made under such a grant
which the State ought to pay; but, be that as it may, the
power to resume the trust whenever the State judges best is,
we think, incontrovertible. The position advanced by the rail-
road company in support of its claim to the ownership of the
submerged lands and the right to the erection of wharves,
piers and docks at its pleasure, or for its business in the har-
bor of Chicago, would place every harbor in the country at
the mercy of at majority of the legislature of the State in which
the harbor is situated.
We cannot, it is true, cite any authority where a grant of
this kind has been held invalid, for we believe that no instance
exists where the harbor of a great city and its commerce have
been allowed to pass into the control of any private corpora-
tion. But the decisions are numerous which declare that such

property is held bv the State, by virtue of its sovereignty, in
trust for the public. The ownership of the navigable waters
of the harbor and of the lands under them is a subject of pub-
lie concern to the whole people of the State. The trust with
which they are held, therefore, is governmental and cannot be
alienated, except in those instances mentioned of parcels used
in the improvement of the interest thus held, or when parcels
can be disposed of without detriment to the publi'interest iai
the lands and waters remaining.
This follows necessarily from the public character of thbe:
property, being held by the whole people for purposes in
which the whole people are interested. As said by Chief
Justice Taney, in airttin v. Waddell, 16 Pet. 367, 410:
"When the Revolution took place the people of each State
became themselves sovereign, and in that character hold the
absolute right to all their navigable waters, and the soils under
them, for their own common use, subject only to the rights
since surrendered by the Constitution to the general govern-
ment." In Arnotld v. Aumndt!/, 1 Halsted, 1, which is cited by
this court in Iiaartin v. WIaddlell, 16 Pet. 418, and spoken of
by Chief Justice Taney as entitled to great weight, and in
which the decision was made " with great deliberation and re-
search," the Supreme Court of New Jersey comments upon
the rights of the State in the bed of navigable waters, and,
after observing that the power exercised by the State over the
lands and waters is nothing more than what is called the jwu
regiumr, the right of regulating, improving and securing them
for the benefit of every individual citizen, adds: "The sov-
ereign power, itself, therefore, cannot consistently with the
principles of the law of nature and the constitution of a well-
ordered society, make a direct and absolute grant of the
waters of the State, divesting all the citizens of their common
right. It would be a grievanice which never could be long
borne by a free people." Necessarily must the control of the
waters of a State over all lands under them pass when the
lands are conveyed in fee to private parties, and are by them
subjected to use.

Fxcept a.s modi#fed in t/he particulars mentioned, the decree
in each of the three cases on appeal must be almed, 'with
costst againSt the railroad company; atlld it iZs 8o o'dered.

MR. JUSTICE SIIIRAS, with whom concurred Ma. JUSTIUE
GRaY and 3MR. JUSTICE BROWN, dissenting.
That the ownership ofa State in the lauds underlying its
navigable waters is as complete, and its power to maake them
the subject of conveyance and grant is as full, as such owner-
ship and power to grant in the case of the other public lands
of the State;I' have supposed to be well settled. : ; '
Thus it was said in Weber v. Harbor Comgmissioners, 18
Wall. 57, 65, that "upon the admission of California into the
Union upon equal footing with the original States, absolute

property in, and dominion and sovereignty over, all soils under
the tide waters within her limits passed to the State, with the
consequent right to dispose of thle title to any part of said 0oils
in such manner as she might deem proper, subject only to the
paramount right of navigation over the waters, so far as such
navigation might be required by the necessities of commerce
with foreign nations or among the several States, the regula-
tion of which was vested in the general government." .
The opinion of the majority, if I rightly apprehend it, like-
wise concedes that a State does possess the power to grant
the rights of property and possession in such lands to private
parties, but the power is stated to be, in some way restricted
to "small parcels, or where such parcels can be disposed of
without detriment to the public interests in the lands and
waters remaining." But it is difficult to see how the validity
of the exercise of the power, if the power exists, can depend
upon the size of the parcel granted, or how, if it be possible
to imagine that the power is subject to such a limitation, the
present case would be affected, as the grant in question,
though doubtless a large and valuable one, is, relatively to the
remaining soil and waters, if not insignificant, yet certainly,
in view of the purposes to be effected, not unreasonable. It
is matter of common knowledge that a great railroad system,
like that of the Illinois Central -Railroad Company, requires
an extensive and constantly increasing territory for its termi-
nal facilities.
It would seem to be plain that, if the State of Illinois has
the power, by her legislature, to grant private rights and
interests in parcels of soil under her navigable waters, the
extent of such a grant and its effect upon the public interests
in the lands and waters remaining are matters of legislative
discretion.

The able and interesting statement, in the opinion of the
majority, of the rights of the public in the navigable waters,
and of the limitation of the powers of the State to part with
its control over them, is not dissented from. But its pertinency
in the present discussion is not clearly seen. It will be time
enough to invoke the doctrine of the inviolability of public
rights when and if the railroad company shall attempt to dis-
regard them.
Should the State of Illinois see, in the great and unforeseen
growth of the city of Chicago and of the lake commerce,
reason to doubt the prudence of her legislature in entering
into the contract created by the passage and acceptance of the
act of 1869, she can take the rights and property of the rail-
road company in these lands by'a constitutional condemnation
of them. So, freed from the shackles of an undesirable con-
tract, she can make, as she expresses in her bill the desire to
do, a " more advantageous sale or disposition to other parties,"
without offence to the law of the land ...

INTERNATIONAL PAPER COMPANY
V.
MISSISSIPPI STATE HIGHWAY DEPARTMENT

271 So. 2d 395 (1972)

PATTERSON, Justice:
This is an appeal by International Paper mouth of the Pascagoula river, hereto-
Company from a decree of the Chancery . fore surveyed by the state; and all other
Court of Jackson County which sustained lands within the borders of the state,
a general demurrer to the appellant's bill and not belonging to the Uilitl States
of complaint. The complainant sought an nor owned by another, are the property
of the state, and are to be managed and
injunction against the State from entering
disposed of throngh the land3-office; and
upon certain lands located on Lowry Island
the land-commissioner may sell any of
in Jackson County and to cancel the State's
such lands at the .same price as the
claim of title thereto. We affirm the order
of the lower court. swamp and overflow lands, subject to
be fixed in the same mannter and milder
The lands in que.stion are part of a large like regulations. He may, in his dis-
area located between the cast and west cretion, rent out any public land which
branches of the Pascagoula River. IIt 1817 is improved or tillable, in the same manl-
when Mississippi was admitted to the ner and under like conditions as he may
Union, this area was interspersed with is- rent out improved or tillable tax-land.
lands and marshes and entirely subject to The foregoing section was carried forward
overflow from high tide of the Gulnf of verbatim as Section 2919, Code of 1906,
Mexico. Between 1817 and 1884 the eleva- and now appears as Mississippi Code 1942
tion of the area increased due to natural Annotated section 4123 (1956).
accretion and portions of the area were no
longer subject to overflow by high tide Subsequent to Hamilton's survey, much
although on occasion it was inundated by of the land called Lowry Island was sold
the high waters of the Pascagoula River. by the State. The State issued patents to
the lands involved here to complainant's
In 1884 the Mississippi Legislature at the
predecessors in title in 1895, ]897 anti 1917.
insistence of then Governor Lowry, pro-
vided, by Chapter 17, Laws of 1884, for the and the titles then passed by mesne convey-
ances to the complainant. Since 1967 the
swampland commissioner to have the area,
complainant has had possession of the land
which thereafter became known as Lowry
and has paid taxes on it as have its predc-
Island, surveyed and sold.
cessors. The area does not lend itself to
J. M. T. Hamilton was commissioned to the normal characteristics of possession'
conduct this survey and his report indicates inasmuch as it is marsh and swampland
that Lowry Island was at that time mostly The payment of taxes is the dominant cvi-
marsh and tidelands. . . . dentiary element of ownership or posses-
sion.
Title to Lowry Island lands has been the
The provisions of Chapter 17, Laws of Title to Lwry sla ands has been the
188, were brought forward and appear subject of dispute for many years. The
the Cwode of 1o892 as Section 2580 as State of Mississippi, as reflected bly several
foll the Code ows: See I tion 2580 as advisory opinions issued through the Attor-
follows:
ney General's office, has expressed the bh-
Other lands; sale of and price fixed.- lief that title to Lowry Island lands re-
All lands fallen or falling to the state mains vested in the sovereign.
by escheatp;or coming to it in any other When plans for theevelopment and
manner; .and all accretions of hand not construction of nersae 1 became known
construction of Interstate 10 became known,
'the subject of private ownership, and the State disclosed its intention to traverse
particularly those accretions near the

a part of Lowry Island which is claimed The bill of co'iplaint alleges that
by International IPaper Company. There- :jh [817. the land in question was subject to
after, the highway department entered upon : thegebb and flow of high and low tides.
the lands and marked the course across There would seem;to be little doubt that
which the highway was to be constructed th': and masses which thereafter arose
and the appellant brought this action to : through accretion and which was not con-
cancel the claim of the State of Mississippi /tiguous to private property, belonged to the
and to enjoin the Mississippi State High- tate. The bed of a bay is property of the
way )epartment from entering upon the state and all bodies of land arising from or
property without first securing a right-of- upon such state-owned bay floor become
way in conformity with the applicable stat- and are property of the state. Where cer-
utes on eminent domain. tain tracts are not in existence at the time
of the land grant to the state and they are
The chancellor below sustained a gen-
subsequently formed by deposits of silt, soil,
eral demurrot of the State of Mississippi
eral derrer of the State of Mississippi tc, from a river, title vests in the state.
and International Paper has appealed from : Gies v. Basore, 154 Tex. 366, 278 S.W.2d
that dcleree. 830 (1955). This case, however, does not
Under the common law both the title .draw a distinction between emerging con-
and domnain of the sea, rivers, and arms of i tiguous lands and those which are noncon-
the sea, where the tide ebbs and flows, and v tiguous. In Moore v. Kuljis, 207 So.2d 604
of all land below the high water mark, were (Miss.1967), this Court held in following
vested within the King in trust for the ! ;the precedents of Harrison County v. Guice,
public. Shively v. Bowlby, 152 U.S. 1, 14 244 Miss. 95, 140 So.2d 838 (1962); Skrmet-
S.Ct. 548, 38 ILEd, 331 (1893). When the ta v. Moore, 227 Miss. 119, 86 So.2d 46
American Colonies achieved freedom fol- (1956); :and Skrmetta v. Moore, 202 Miss,
lowing the Revolhitionary War, "the own- i 585,:30 So.2d 53 (1947); that property own-
ership of, and dominion and sovereignty ? ers adjacent to tidelands were entitled to
over, lands covered by tidewaters, and the ' the accretionary buildup thereto whether
fresh waters of the Great Lakes, within it resulted from man-made or natural ac-
the limits of the several states, belonged cretion. We find no authority suggestive
to the respective states within which they .of title to noncontiguous emerging tide-
were found, with the consequent right to lands whose characteristics have changed
use or dispose of any portion thereof, when from.tidelands to fast dry lands.
that could be done without impairment of ..
the interest of the public in the waters, sub- . : IHn Hogue v. Boaurgois, 71 N.W.2d 47, 54
ject to the right of Congress to control :'A.L,R.2d 633 (N,.D.1955), the North Da-
their navigation for the regulation of corn- kota Supreme Court indicated that where
merce." [Money v. Wood, 152 Miss. 17, ... an'island or accumiulktion of land formed
28, 118 So. 357, 359 (1928)]. : apairt from the mainland by deposits of
Mississippi -alluvial accretions' in the bed of a naviga-
In 1817 upon admission of Mississippi 'able stream, but such':'acctmulation or is-
to the Union, the State became vested as lable stream, but sch cc fmulatiod or ls-
Iandfi 'l'and had not become "fast (fry land"
trustee with "the title to all the land under I"
4t the time the State was admitted to the
tide-water, including the spaces between ii, the time the wStateu is admitted to the
ordinary high and low water marks; this . togi title of such t h or accumat
! }togither with all' additions thereto formed
title of the state being held for pltblic pur- : ' p,
poses, chief among which purposes is that . he natural causes through the gradual
, .. !cess of accretion vested in the State.
of commerce and navigation, for which lat- .
ter purposes the title of the state is subser- F 'rom the bill po complaint we note
vient to such regulations as may be consti- - that the appellant seeks cancellation 0f the
tutionally made by the national government, : State's claim to all of the lands described
in said matters of navigation and corn- therein except the well defined navigable
rmerce." [Rouse v. Saucier's Heirs, 166 I streams. It therefore claims title to the
Miss. 704, 713, 146 So. 291, 292 (1933)]. martshlands below mean high tide as well

as title to any lands that have emerged by The appellant contcunds, however,
accretion so that they are now fast dry that the most recent pronoulncenllnt of this
r* lands. The issue before the Court is wheth- Court upon the subject, Trenting v. Bridge
er the legislature had the authority to con- & Park Commission of City of Biloxi, 19)q
vey in fee simple the marshlands as well as So.2d 627 (Miss.1967), eroded the rule an-
the accreted land on Lowry Island for pri- nounced in lony.r, supra, anl the cases fol-
vate benefit. lowing it. In Troelting the principal issue
The chancellor reasoned that such au- was whether a conveyance by the State of
filled-in tidelands was a valid exercise by
thority was not present, indicating "that the ftllsd-in tidelands was a vli exercise
ownership of the state was and is as trustee trstee of the tidelands. We stated that
trustee of the tidelands. We stated that
for the use and benefit of all of the people the legislature had authority to provide for
of the state and it is not subject to convey- the sale of lands filled in above the lb
ances to private individuals for private pur-
poses." This Court in initially discussing shoal waters to ivate owners when ci
the public trust by which title to tidelandsto
is held by the State, held in Money, supra, dent "to the overall p ic interest and pr-
that the sovereign could not convey in fee ose in accommodating an expanding pot-
simple the title to submerged trust propertyon commerce, toism and recreation.
to private owners for private purposes. In We observe that this case is a e
the case of lRouse v. Saucier's Heirs, 166 the general re which prhits the sale
Miss. , 146 So. 291 (1933), we consider- Heir by a trustee to anyone for a private purpose.
Miss. 704, 146 So. 291. (1933), we consider-
The case wvas restricted in its terms to the
ed the issue of whether the State, and some-
what obliqluely the Federal Government,
what obliquely the Federal Government, from special legislation directed to a par-
could convey fee simple title to marshlands ticu lar area. We hel d this authority of
situated along the Wolf River which flows sal e va ld only becase a pblic ppose
into the Bay of St. Louis to an individual resulted which was clearly' pa ramount to
for private purposes. Justice Griffith,vate interest Te case is nt -
thority for nor does it lend validity to the
Neither the state nor the federal gov- act of the legislature in 1884 which attempt-
ernment can validly convey title in fee ed to authorize the sale of the state's trust
simple to an area such as above men- lands lying between the east and west
tioned to private owners for private pur- branches of the Pascagoula River to pri-
,* poses. To what extent and what title vate persons for private purposes.
may be conveyed for public purposes,
and particularly for the purposes of com-
merce and navigation and fisheries, is question is whether the State was empow-
ered to sell for private purposes at the time
no t here be foree us, and a n academic dis- it attempted to sell the accreted lands not
cussion will therefore not be undertaken contiguous to private property that had
contiguous to private property that had
upon that subject. (166 Miss, at 713, 146 While i
~So. at 292i~). ~arisen above nmean high tide. While it is
- true that the character of the land, admit-
To the same effect see Parks v. Simpson, ted by delnlrrer, has changed by accretion
242 Miss. 894, 137 So.2d 136 (1962); Giles from the time it vested in the State until
v. City of Biloxi, 237 Miss. 65, 112 So.2d the time of the legislative enactment and
815 (1959); Xidis v. City of Gulfport, 221 that perhaps its paramount use for naviga-
Miss. 79, 72 So.2d 153 (1954); Crary v. tional purposes has diminished, neverthe-
State Highway Commission, 219 Miss.' 284, less it is our opinion that these changing
68 So2d 468 (1953); State ex rel. Rice characteristics of the land did not displace
v. Stewart, 184 Miss. 202, 185 So. 247 the trust imposed upon the State for the
(1939); and State v. Stewart, 184 Miss. public. In Tr''ting, Mtpra, we noted the
4 202, 184 So. 44 (1938). We are' of the continuation of the common law trust in
opinion from these authorities that the the following language:
chancellor below properly sustained the (Ie-
murrer to the bill of complaint which chal-
lenged the State's title to those lands below
the level of mean high tide.

Under the particular facts of this case, such significance that it'Odoes not control
the chancery court was warranted in con- the present case involving a paramount i
cluding that the state could convey to the private interest. We conclude that the de-: i
Park Commission fee simple title to the cree. of the lower court sustaining the de-
submerged lands in question,; for public murrer should be affirmed.
purposes and uses in the overall develop-
ment of Deer Island. Moreover, the leg- The appellant next contends that the
islature was justified in authorizing sale asse. ment and collection of taxes on these
of these lands, when filled in and de- lands by the State for a period in excess of
veloped, to private individuals as an in- half a century, together with its failure to.
cident to the overall public interest and file suit to set aside the patient, should *
purpose in accommodating an expanding equity estop the State frdm contending its
population, commerce, tourism and rec- patent' to'be invalid. It cites in support of
reation. There will be no substantial in- this position the recent case of State v.
terference with the original purposes of - Stockett, 249 So.2d 388 '(Miss. 1971). We
the trust imposed uponi the state in con- Aie"6f the opinion this argument is not well
nection with these submerged lands, and founded 'since the facts in Stockett, supra,
the development as authorized by the were'substantially different from the ad-
statutes is consistent with the public trust. witted allegations of the present bill of
(199 So.2d at 633)... complaint. We are of the opinion that this
contention is unavailing and that the deci-
The authorized development was held to
sion of the lower court should be affirmed.
be consistent with the public trust and in
the public interest. Here the claim of title Affirmed.
by the appellant is directed to a private
interest, a distinction from Treuting of

CITY OF LONG BEACH V. MANSELL

Supreme Court of California, In Bank, 1970

476 P. 2d 423

(A legislative settlement, including two agreements, was
attempted to settle a title dispute over a large amount of land
at the mouth of a river on the Pacific Ocean. As part of the
first agreement, the city agreed to exchange 5 acres of public
tidelands which had been previously filled by the city, for 8. 5
acres of privately-owned riparian land. The city treasurer
refused to sign the deeds on the grounds they violated the
public trust.)

Petitioners also contend, on the basis of the trust in view of its purposes-with cer-
certain early decisions of this court, that tain express reservations such as article
the Legislature has the power to terminate XV, section 3..
the common law public trust as to tidelands Although these powers include dis-
which have ceased to be necessary or use- posal of trust lands in such manner as
ful for purposes of navigation, commerce, the interests of navigation, commerce, and
and fisheries-and that tidelands so freed fisheries require, tidelands subject to the
from the public trust may be alienated with- trust may not be alienated into absolute
out violation of article XV, section 3. Ap- private ownership; attempted alienation of
such tidelands passes only bare legal title,
parently this argument accepts respondents' such tidelands passes only bare legal title,
the lands remaining subject to the public
contention that "tidelands" within the casement. s bowever, the state in its
easement.-' . towever,' the state in its
meaning of article XV, section 3, are lands proper administration of the trust may find
which were seaward of mean high tide in it necessary or advisable to cut off certain
1879 (see text preceding fn. 15, ante) but tidelands from water access and render
urges that such lands can be removed from them useless for trust purposes. In such a
the crucial category by legislative declara- case the state through the Legislature may
tion. find and determine that such lands are no
A understanding of this argu longer useful for trust purposes and free
ment requires a brief explanation of the them from the trust. When tidelands have
common law trust 16 as it relates to ques- been so freed from the trust-and if they
tions of alienation, The state's "owner- are not subject to the constitutional pro-
ship" of public tidelands and submerged hibition forbidding alienation-they may
hibition forbidding alienationsthey may
lands osee Civ.Code, � 670), which it as- be irrevocably conveyed into absolute pri-
lands (see Civ. Code, � 070), which it as.
sumed upon admission to the Union, is not vate ownership.
of a proprietary nature. Rather, the state The common law public trust here
holds such lands in trust for public pur- described is to be distinguished from the
poses, which have traditionally been de- constitutional prohibition set forth in article
lineated in terms of navigation, commerce, XV, sectiorn 3. The former does not of
and fisheries. The powers of the state as itself forbid the alienation of tidelands but
trustee are implied and include everything merely insures that when such lands arce
necessary to the proper administration of subject to the trust (i. e., have not been re-

moved therefrom by proper legislative de- p. 41, 48 P.2d at p. 25.)
termination)/ they remain so subject even After this conclusion that it was per-
'after alienation. The constitutional pro- missible for the state to terminate the
vision, on the other hand, flatly forbids common law trust as to the reclaimed par-
alienation of certain tidelands-i. e., tide- cel, we turned to a consideration of the
lands within two miles of an incorporated effect of constitutional provisions. We
city-whether or not they are trust lands first pointed out that "there has been no
at the time of alienation. attempt to alienate the 18-acre parcel which
The cases upon which petitioners rely is the subject of this action from public
(Atwood v. Hammond (1935) 4 Cal.2d 31, ownership, but, rather, an effort to require
48 P.2d 20; People ex rel. State Board of that it be used only for purposes not con-
Harbor Com'rs v. Kerber (1908) 152 Cal. nected directly with navigation or com-
731, 93 P. 878; Boone v. Kingsbury (1928) merce, that is, for county and municipal
206 Cal. 148, 273 P. 797; see also City of buildings." (4 Cal.2d at p. 42, 48 P.2d at
Milwaukee v. State (1927) 193 Wis. 423, p. 25.) This fact, however, did not render
214 N.W. 820) indicate that this distinction relevant constitutional provisions wholly
can be made to yield in some circumstances. unworthy of consideration. "[I]n view of
Thus, in Atwood v. Hammond, supra, 4 Cal. the manifest purpose of sections 2 19 and 3,
2d 31, 48 P.2d 20, the defendant city and article 15, the prohibition against alienation
county proposed to establish a civic center necessarily implies a prohibition against
upon tidelands which had been conveyed to freeing such tidelands from the trust for
it for that purpose by the state. Plaintiff navigation and dedicating them to other
taxpayers contended that such a use was uses while they remain tidelands. But said
not permissible because the subject tract section cannot be interpreted to forbid the
was part of a larger tract previously con- reclamation of lands which may be filled in
veyed to the city subject to the public trust as the result of a highly beneficial program
for navigation, commerce, and fisheries. of harbor development. It applies to tide-
This court held that the demurrer to the lands, that is, to lands covered and uncov-
complaint was properly sustained without ered by the flow and ebb of the tides, and,
leave to amend. l it has been held, to lands which are con-
tinuously submerged. It does not in terms
We pointed out that a prior grant to the apply to lands which, through reclamation,
city for trust purposes was made upon con- are no longer covered and uncovered by the
dition that the city undertake harbor im- tides, and have ceased to be tidelands. We
provements on the granted property, and are of the view that it was competent for
that in the course of making such improve- the Legislature upon finding that the 18-
ments dredging occurred and the subject acre tract was 'not longer required for
tract was filled with the resulting sand navigation, commerce or fisheries,' to free
and debris, and a bulkhead was erected. it from the public easement for those
Subsequent grants made after the subject purposes." (4 Cal.2d at pp. 42-43, 48 P.2d
tract had been reclaimed (1) declared that at p. 25.)
the tract had ceased to be tidelands and
was free from the t r.ts and restrictions Finally, we emphasized that only a small
imposed by the prior grant and (2) con- portion of the original trust grant was
veyed the reclaimed land to the city for being freed from the public trust. "Plain-
veyed the reclaimed land to the city for
municipal purposes including that of a tiff does not allege what proportion of the
municipal purposes including that of a
.civic center. We held that, whereas the total area lying shoreward of the bulkhead
civic center. We held that, whereas the
line or seawall this 18-acre parcel consti-
reclamation itself "did not ipso facto termi- line or seaa this 18-acr parcel coni-
tutes. But the inference is that it is only
nate the public trust for navigation and
commerce * * *," nevertheless "it was a very small part of the total acreage. * *
comre . nvrhlWe cannot interfere with the Legislature's
competent for the 'state by legislative ac-
tion [i. e., the subsequent grant] to termi- decision th the public easement may be
nate the public trust as to the 18-acre par-' a at d at t reat m 2
cel, which constitutes but a small part of ecel." (4 Cal.2d at p. 43, 48 P.2d at p. 26.),
the area granted to the city." (4 Cal.2d at The parties are in substantial dispute

as to the meaning and application of this est for navigational and related purposes
case. As indicated above, petitioners find rather than in the interest of private per-
support therein for their contention that the sons to whom they might be granted. Sure-
prohibition of article XV, section 3, is inap- ly if in the course of, and for the purpose;
plicable to tidelands which have been re- of carrying oit, a comprehensive public pro-!
claimed "as the result of a highly beneficial gram of harbor development certain por-
program of harbor development" (4 Cat2gd tions of tidelands are filled iunder circum-
at p. 42, 48 P.2d at p. 25) and have been stances clearly showing that, in the light of
declared by the Legislature to be no longer the relatively minor area involved and the
subject to the common law trust. Respond- manner of reclamation in relation to the
ents, on the other han4, point out that the program as a whole, such reclamation is
lands in Atwood were granted to a public � merely a reasonably necessary incident of
rather than a private grantee so that, as the program and of the- promotion of its
the court recognized, the constitutional pro- public objective, and if Thereaftcr such
visions were strictly inapplicable for that filled areas are declared by the Lcgislature
reason. Thus, respondents argue, any sup- to be of no value for navigational and rc-
port to be found for petitioners' positiotn lated purposes, then we think that a sale and
transfer into private ownership of such
in the court's language must rest upon mere
din the court's language must rest upon mere filled-in areas might be found to be en-
dictum.
tirely consistent with the intention and ob-
Ilowce.er the language in Alwood jective of the framers of the Constitution.
may be characterized in terms of its value But we emphasize that the circumstances
as precedent, we think that it represents under which this may occur are of neces-
a clear statement of this court that article sity unique, that the conditions sanctioning
XV, section 3, does not forbid alienation of its approval must be scrupulously Observed
lands within two miles of an incorporated and satisfied, and that generally speaking
city which have been reclaimed "as 'the the reclaimed area alleged to be free from
result of a highly beneficial program of both the public trust and the constitutional
harbor development," are relatively small restriction against alienation into private
in area, and have been freed of the public ownership must be, as it were, a residual
trust by legislative act. One persuasive product of the larger program-a "relative-
reason for this conclusion is that the court ly small parcel" to use the language of At-
in Atlwood, prior to the language above wood (4 Cal.2d at p. 43, 48 P.2d 20;)-
quoted, discussed and cited a number of determined by the Legislature to have no
cases involving public harbor development further value for the purposes of the public
which entailed the granting of lands re- i * easement.
claimed in the course of development into
private ownership.20 Although these cases
within two miles of an incorporated city
do not concern themselves with the ap-
plication of article XV, section 3-that. pro- or town which were subject to the ebb
vision not being in existence at the time ' and flow of the tide at the date of the adop-
of the transfers there in question-the tion of the Constitution-and which there-
material which we have quoted proceeds in ' fore are "tidelands" within the meaning of
light of those cases and 'clearly indicates article XV, section 3-(1) have been found
that article XV, section 3, would not have and determined by the Legislature to be
forbidden those transfers. 'valuteless for trust purposes and are freed
Secondly, we consider thati the principle , from the public trust (see fn. 17, ante) and
f th At d htt (2) have been or are to be reclaimed pursu-
of the Atwood case is wholly consistent ' ant to and in the course of a highly heni-
with the purposes of the framers, of the
Constitution. The debates at the Constitu- ficial public program of harbor develop-
ment, such lands-if they constitute a rela-
tional Convention, to which we have ad-
verted 'above, reveal a general intention to tively small parcel of the total acreage in-
volved-thereupon cease'to be "tidelands"
retain tidelands within two miles of in- meaning of the
within 'the meaning of the constitutional
corporated cities in order that' such tide- provision and are sujet iention into
lands might be utilized in the public inter-o aienaion ino
absolute private ownership..

It remains that we determine the appli- annexed to the city in 1923. This filling
cation of this principle to the case before proceeded in a rather haphazard manner,
us. without significant regard for the uncertain
boundaries in the area, and in one case-
it is clear, we think, that those pr- that of Steamshovel Channel (see text
tions of the McGrath agreement which con- an
accompanying fn. 7, ante)-efilling was
template the exchange of certain reclaimed undertaken upon lands whose public
public tidelands for other lands owned by caracter was cear It is anifest that the
character was clear.' It is manifest that the
the McGrath trust are consistent with the
filling in question was not uldertaken
principle we have enunciated. The public n
pursuant to and as an integral part of a
lands in question were reclaimed in the
public program of harbor development.
course of that public program of harbor Moreover, the contemplated disclaimer of
development which resulted in the creation public interest and quitclaim in favor of
of Marine Stadium. Those lands are private parties is in no way related to the
relatively minor in area (5 acres). and have present public program of harbor develop-
been declared in chapter 1688 to be "no
longer necessary or useful for commerce, ment in the Alamitos Bay area. For these
fisheries and navigation." Moreover the reasons it is apparent that the principle
we have distilled from Atwood v. Haam-
exchange itself is sought to be made in we have distilled from Atwood v am-
furtherance of an existing and ongoing nd, spra, 4 Ca.d 1, 4 P.2d 20;
fprogramn of harbor development. related cases is not applicable to the section
2(a) lands dcalt with in the Belmont agree-
The situation is otherwise, how- ment. It must therefore be concluded that
ever, with regard to the settled and sub- those lands, to the extent they are in fact
divided lands described in section 2(a) of public "tidelands" within the meaning of
chapter 1688 which are the primary concern article XV, section 3, of the California
of the Belmont agreement. As we have Constitution, have not been withdrawn from
indicated above, the filling of these lands that category by proper legislative action
by private developers began at about the and remain subject to the prohibition
turn of the century and was substantially against alienation contained in that section.
completed when the Alamitos Bay area was

BOROUGH OF NEPTUNE CITY
Vo
BOROUGH OF AVON-BY-THE-SEA.

Supreme Court of New Jersey, 1972

294 A. 2d 47

HALL, J.
The question presented by this case is We approve that holding.
whether all oceanfront municipality may
charge non-residents higher fees than resi- Avon's proofs, based on 1969 figures,
dents for the use of its beach area. The sought to show a deficit of about $50,000
Law Division sustained an amendatory between user fees received in that year
ordinance of defendant Borough of Avon- atld the costs of operation and maintenance
of the beach. The cost figures were de-
N.J.Super. 115, 274 A.2d 860 (1971). The rived from estimates of the portions of
challenge came from plaintiffs Borough of 'ldgctary line items said to he attrilutable
Neptune City, an adjacent inland mu- to the beach as well as from projections
nicipality, and two of its residents. We On an annual basis of expected future
granted plaintiffs' motion to certify their capital expenses. Plaintiffs urge that some
appeal to the Appellate Division before
argument in that tribunal. R. 2:12-2. The over, there was no showing that the same
question posed is of ever increasing import- costs would not be incurred even if only
ance iln our metropolitan area.1 We be- residents (under the definition) used the
lieve that the 'answer to it should turn on l;each, nor was it demonstrated that the
the application of what has become known 197)0 discriminatory fee schedule closed the
as the public trust doctriilc. * . alleged financial gap.
Plaintiffs attacked the ordinance We prefer, however, not to treat the
on several grounds, including the claim of case oil this basis, but rather, as we inl-
a common law right of access to the ocean dicated at the outset, to approach it from
in all citizens of the state. This in essence the more fundainentall viewpoint of the
amounts to reliance upon the public trust modern meaning and application of the
doctrine, although not denominated by public trust doctrine, ...
plaintiffs as such. Avon, although infer- A succinct statement of the principle
entially recognizing some such right, de- is found in the leading case of llliois
fended its amcndatory ordinance on the Central Railroad Company v. People of
thesis, accepted by the trial court, that its State of Illinois, 146 U.S. 387, 435, 13 S.Ct.
property taxpayers should nevertheless not 110, 111, 36 ,.Ed. 1018, 1036 (1892):
be called upon to bear the expense, above
non-discriminating beach user fees receiv- ' It is the settled law of this country.'
ed, of the cost of operating and maintain- that the ownership of and dominion and
ing the beachfront, claimed to result from sovereignty over lands covered by tide
use by non-residents and that consequently waters, within the limits of the several
the discrimination in fees was not irrational states, belong to the respective states
or invidious. All recognized that an ocean- within which they are found, with the
front municipality may not absolutely ex- consequent right to use or dispose of
elude non-residents from the use of its any portion thereof, when that can be
dedicated beach, including, of course, land done without substantial impairment of
seaward of the mean high water mark; the interest of the public in the waters,
a trial court decision, Brindley v. Lavallettc, and subject always to the paramount
33 N.J.Snper. 344, 348-349, 110 A.2d 157 right of Congress to control their naviga-
(Law D)iv.1954), had so held, although not tion so far as may be necessary for the
by reliance upon the public trust doctrine, regulation of commerce with foreign

nations and among the states. This doc- vate property.' Those things not divided
trifle has Ieen often announced by this among the individuals still belong to the
court . . nation, and are called public property.
Of these, again, some are reserved for
The original pnrpose of the doctrine was the necessities of the state, and are used
to preserve for the use of all the public for the public benefit, and those are
for the public benefit, and those are
natural water resources for navigation and called "{he domain of the croat or of the
commerce, waterways being the principal pbc;" others remain common to all
and republic;" others remain common to all
transportation arteries of early days, and the citizens, who take of them and use
for fishing, an important source of food. them, each according to his nccessities,
This is also well pointed up in Illinois and according to the laws which regulate
Centtral. their use, and are called common prop-
erty. Of this latter kind, according to the
It is a title held in trust for the people rt. Of this latter ki nd, according to the
of the state, that they may enjoy the
navigation of the waters, carry on com- nations, and upon the civil law, are the
merce over them, and have liberty of air, the running water, the sea, the fish,
and the wild beasts. Vattel lib. i, 20. 2
fishing therein, freed from the olhstruc-
'.Black.Com. 14. B~ut inasmuch as the
tion or interference of private parties.
things which constitute this comm11ont
The interest of the people in the navi-
property are things in which a sort of
gation of the waters and il commerce
transient usufructuary possession, only,
over them may be improved in many in- y possession, only,
stances by the erection of wharves, docks, can be had; and inasmuch as the title to
them and to the soil by which they are
and piers therein, for which purpose the them and to which they are
state may grant parcels of the submerged
lands; and, so long as their disposition purtenart, cannot wel, according to the
is madle for such purpose, no valid ob- . common law notion of title, be vested in
jections can hlie made to the grants. It is all the people; therefore, the wisdom of
that law has placed.it in the hands of the
grants of parcels of lands under naviga-
bIle waters that may afford foundation sovereign power, to be held, protected,
for wharves, piers, docks, and other and regulated for the common use and
structures in aid of commerce, and grants benefit. But still, though this title, strict-
of parcels which, being occupied, do not ly speaking, is in the sovereign, yet the
substantially impair the public interest use is common to all the people. (6 N.J.
in the lands and water remaining, that
are chiefly considered and sustained in * * * * : * *
the adjudged cases as a valid exercise And I am further of opinion, that, upon
of legislative power consistently with the Revolution, all these royal rights be-
the trust to the public upon which such c-- cane vested in'the people of New Jersey
lands are held by the state. (146 U.S. as'the sovereign of the country, and are
at 452, 13 S.Ct. at 118, 36 L.Ed. at 1042) now in their hands; and that they, hav-
ing, themselves, both the legal title and
There is not the slightest doubt that the usufruct, may make such disposition
New Jersey has always recognized the trust of them, and such regulation conecrning
doctrine. The basic case is Arnold v. them, as they may think fit; that this
Mundy, 6 N.J.L. 1 (Sup.Ct.1821), where power of disposition and regulation must
Chief Justice Kirkpatrick spoke as follows: he exercised by them in their sovereign
capacity; that the legislature is their
Every thing susceptible of property is rightful representative in this respect,
considered as belonging to the nation that and, therefore, that the legislature, in the
possesses the country, and as forming the exerojse of this power, may lawfully
entire mass of its wealth. But the nation erect ports, harbours, basiri, docks, and
does not possess all those things in the wharves -on the coasts of the sea and in
same marnner. By very far the greater the arms thereof, and in the navigable
part of them are divided among the in- rivers; that they may bank off those
dividuals of the nation, and become pri- waters and reclaim the land upon the

shores; that they may build dams, locks, eluding bathing, boating and associated ac-
and bridges for the improvement of the tivities. Both arc of prime importance in
navigation and the ease of passage; that this day and age. Remaining'tidal water rc-
they may clear and improve fishing sources still in the ownership of the State
places, to increase the product of the are becoming very scarce, demands upon
fishery; that they may create, enlarge, them by reason of increased population, in-
and improve oyster beds, by planting dustrial development and their popularity
oysters therein in order to procure a more for recreational uses and open space are
ample supply; that they may do these much heavier, and their importance to the
things, themselves, at the public expense, public welfare has become much more'ap-
or they may authorize others to do it by parent. Cf. New Jersey Sports & Exposition
their own labour, and at their own ex- Authority v. McCrane, 61 N.J. 1, at 55,
pense, giving them reasonable tolls, rents, 292 A.2d 545, at 579 (1972) (concurring
profits, or exclusive and temporary en- and dissenting opinion of Hall, J.). All..
joyments; but still this power, which may of these factors mandate more precise at-
be thus exercised by the sovereignty of tention to the doctrine.
the state, is nothing more than what is
called the jas regiumt, the right of regu- Here we are not directly concerned with
lating, improving, and securing for the the extent of legislative power to alienate
common benefit of every individual citi- tidal lands because the lands seaward of the
zen. The sovereign power itself, there- mean high water line remain in state owner-
fore, cannot, consistentlywith the princi- ship, the municipality owns the bordering
ples of the law of nature and the consti- land, which is dedicated to park and beach
tution of a well ordered society, make a purposes, and no problem of physical access
direct and absolute grant of the waters by the public to the ocean exists. The
of the state, divesting all the citizens of matter of legislative alienation in this state
their common right. It would be a griev- should, nonetheless, be briefly adverted-to
ance which never could be long borne by since it has a tangential bearing. As the
a free people. (6 N.J.L ....... . ........ at 78) earlier quotations indicate,' it has always
*: been assumed that the State 'may convey
Similar expressions are found throughout
Similar expressions are found throughout yor grant rights in some tidal lands to pri-
our decisions down through the years. See vate persons where the use to be made
e. g., Cobb v. Davenport, 32 N.J.L. 369, thereof is consistent with and in further-
378-379 (Sup.Ct.1867); Ross v. Mayor and ance of the purposes of the doctrine, e, g.,
Council of Borough of Edgewater, 115 the improvement of commerce and naviga-
N.J.L. 477, 483, 180 A. 866 (Sup.Ct.1935), tion redoundinig to the benefit of the public.
affirmed o. b. 116 N.J,1,. 447, 184' A. 810 However, oui cases rather early began to
(E. & A.1936), - cert. den. 299 U.S. 543, ./roadly say that the State's power to vacate
57 S.Ct. 37, 81 L.Ed. 400 (1936); Bailey v. or abridge public rights in tidal lands is
Driscoll, supra. (19 N.J. at 367-368, 117 A. -absolute and unlimited, and our statutes
2d 265); Baker v. Normanoch Ass'n, Inc', .dealing with state conveyances of such
25 N.J. 407, 414, 136 A.2d 645 (1957). ' lands contain few, if any, limitations there-
It is safe to say, howevecr, that the scope on. (The statutes are collected in Revised
and limitations of the doctrine in this state Statutes, Chapter 3, Riparian Lands, of
have never been defined with any great de- Title 12, Commerce and Navigation, N.J.
gree of precision. That it represents a S.A. 12:3-1 et seq.). An early case so indi-
deeply inherent right of the citizenry can- cating is Stevens v. Paterson & Newark
not be disputed. Two aspects should be Railroad Co., 34 N.J.L. 532, 549-552 (E. &
particularly mentioned, one only tangen- .A.1870); a more recent example is Schultz
tially involved in this case and the latter v. Wilson, 44 N.J.Super. 591, 597, 131 A,2d
directly pertinent. The former relates to 415 (App,Div.1957), certif. den. 24 N.J.
the lawful extent of the power of the legis- 546, 133 A,2d 395 (1957), But see Borough
lature to alienate trust lands to private par- of Wildwood Crest v. Masciarclla, 51 N.J.
ties; the latter to the inlclusion within the 352, 358, 240 A.2d 665 (1968). See also
doctrine of public accessibility to and use Mayor and. Council of City of Hoboken v.
Of such lands for recreation and health, in-ailroad Co., 124 U.S. 656,

147

688-691, 8 S.Ct. 643, 653-655, 31 L.Ed. 543, We have no difficulty in finding
551-552 (1888); Shively v. Bowlby, 152 that, in this latter half of the twentieth
U.S. 1, 21-23, 14 S.Ct. 548, 555-556, 38 century, the public rights in tidal lands are
L.Ed. 331, 339-340 (1894), purporting to not limited to the ancient prerogatives of
summarize the New Jersey law to that date. navigation and fishing, but extend as well
But compare Illinois Central Railroad Corn- to recreational uses, including bathing,
pany v. People of State of Illinois, supra, swimming and other shore activities. The
146 U.S. at 453, 13 S.Ct. at 118, 36 L.Ed. public trust doctrine, like all common law
at 1042, holding that a state may not corn- principles, should not be considered fixed
pletely abdicate its obligations with respect or static, but should be molded and extended
to such lands: to meet changing conditions and needs of
The trust devolving upon the state for the the public it was. created to benefit. The
public, and which can only be discharged legislature appears to have had such an
by the management and control of prop- extension in mind in enacting N.J.S,A. 12:-
erty in which the public has an interest, 3-33, 34, previously mentioned. Those se-
cannot be relinquished by a transfer of tions, generally speaking, authorize grants
the, property. The control of the state to governmental bodies of tide-flowed lands
for the purposes of the trust can never which front upon a public park extending
be lost, except as to such parcels as are to such lands, bit only'upon condition that
used in promoting the interests of the any land so granted shall be maintained as
public therein, or can be disposed of a public park for public use, resort and
without any substantial impairment of recreation. Cf. Martin v. City of Asbury
the public interest in the lands and waters Park, 114 N.J.L. 298, 176 A. 172 (E. & A.
remaining. 1935).
The observation to be made is Other states have readily extended the
that the statements in our cases of an un- doctrine, beyond the original purposes of
' limited power in the legislature to convey navigation and fishing, to cover other pub-
such trlst lands to private persons may well lie uses, and especially recreational uses.
be too broad. It may be that some such In Massachusetts, it was held many years
prior conveyances constituted an improper ago that "it would be too strict a doctrine
alienation of trust property or at least that to hold that the trust for the public, under
they are impliedly impressed with certain which the state holds and controls naviga-
obligations on the grantee to use the con- hble tide waters and the land under them,
veyed lands only consistently with the pub- beyond the line of private ownership, is for
lic rights therein. For example, the convey- navigation alone. It is wider in its scope,
ance of tide-flowed lands bordered by an and it includes all necessary and proper
ocean dry sand area in private ownership uses, in the interest of the public." ITome
to the owner thereof may well be subject for Aged Women v. Commonwealth, 202
to the right of the public to use the ocean Mass. 422, 89 N.E. 124, 129 (1909). Wis-
waters. And, whether or not there was any cousin, where the doctrine covers all navi-
such conveyance of tidal land, the problem gable waters, has long held that it extends
of a means of public access to that land to all public uses of water including pleas-
and the ocean exists. This case does not ure boating, sailing, fishing, swimming,
require resolution of such issues and we ex- hunting, skating and enjoyment of scenic
press no opinion on them. We mention beauty. Representative modern cases are
this alienation aspect to indicate that, at Hixon v. Public Service Commission, 32
least where the upland sand area is owned Wis.2d 608, 146 N.W.2d 577, 582 (1966);
by a municipality-a political subdivision Muench v. I'ublic Service Commission, 261
and creature of the state-and dedicated Wis. 492, 53 N.W.2d 514, 520 (1952), af-
to' public beach purposes, a modern court firmed on rehearing 261 Wis. 492, 55 N.W.
must take the view that the public trust 2d 40 (1952). Courts in several other states
doctrine dictates that the beach and the have recently recognized the vital public
ocean waters must be open to all on equal interest in the' use of the sea shore for
terms and without preference and that any recreational purposes and have, under vari-
contrary state or municipal action is im- ous theories consistent with their own law,
permissible. asserted the public rights in such land to

be superior to private or municipal interests. pre-amendment ordinance would only create
See e. g., State ex rel. Thornton v. I-lay, hopeless practical confusion and some un-
254 Or. 584, 462 P.2d 671 (1969); Gion v. fairness to the municipality and its tax-
City of Santa Cruz, 2 Cal.3d 29, 84 Cal. payers. We therefore determine that the
Rptr. 162, 465 P.2d 50 (1970); Gewirtz v. judgment to be entered pursuant to this .
City of Long Beach, 69 Misc.2d 763, 330 opinion should operate prospectively only
N.Y.S.2d 495 (Sup.Ct., Nassau Cty. 1972). and become effective on January 1, 1973.
Modern text writers and commentators as-
sert that the trend of the law is, or'should We ought also to say that we
be, in the same direction. 1 Waters and fully appreciate the burdens, financial and
Water Rights, nsupra, � 36.4(B), pp. 200- otherwise, resting upon our oceanfront mu-
202; Sax, s'upra, 68 Mich.L.Rev. at 556, nicipalities' by reason of the attraction of
565; Note, supra, 79 Yale L.J. at 777-778, the sea and thir beaches in the summer
784-785; Note, Jaffee, siprr, 25 YRutgersa. season to large numbers of people not per-
L. Rev., at 608 n. 226, 6290,. 701.' -,~ , t manently resident in the community. The
rationale behind N.J.S.A. 40:61-22.20 cer-
; _� #We are convinced-it'haS' to follow' tainly is that such municipalities may prop-
that, while municipalities, may validly erly pass on some or all of the ;financial
charge reasonable fees for the use of their burden, as they decide, by imposing reason-
beaches, they may not discriminate in any able beach user fees, which we have held
respect between their residents and non-. here must be uniform for all. We think it
residents. The Avon amendatory ordinance ,quite appropriate that such municipalities
of 1970 clearly does so by restricting the I may, in arriving at such fees, consider all
sale of season badges to residents, as de- / additional costs legitimately attributable to
fined in the ordinance, resulting in a lower .. the operation and maintenance of the beach-
fee to them. In addition the fee for daily front, including direct beach operational cx-
badges, which would be utilized mostly by penses, ad<4tional personnel and services
non-residents, may have been as well dis- required in the entire community, debt
criminatorily designed with respect to the service of outstanding obligations incurred
amount of the charge. Since we cannot for beach improvement and, preservation,
tell what fee schedule the municipality and a reasonable annual reserve designed to
would have adopted when it passed this meet expected future capital expenses
ordinance in 1970 if it had to do so on therefor. They may also, we think, very
the basis of equal treatment for all, we see properly regulate and limit, on a first come,
no other course but to set aside the entire * first served basis, the number of persons
amendatory enactment. allowed on the beach at any one time in
the interest of safety,
We recognize, however,'that Avoni
The judgment of the Law Division is re-
has operated under the .present schedule The jud o the Law Division is re-
since 1970 and that the present beach sea- versed and the cause is remanded to that
son is about half over. Other ocean- tribunal for the entry of a judgment con-
front municipalities may well have similar sistent with this opinion No costs.
enactments. Also Avon vrery likely has . For reversal: Chief Justice WEIN-
operated its budget and financial affairs TRAUB and Justices JACOBS, HALL
on the basis of the beach user fees expected and SCHETTINO--4.
to be collected under the present schedule
in reliance upon the trial court decision. For affirmance Justices FRANCIS and
To attempt now to turn the clock back to MOUNTAIN2.
the non-discriminatory schedule (with con-
siderably lower charges) specified in the

49
49

WILBOUR V. GALLAGHER

Supreme Court of Washington, 1969

462 P. 2d 232

HILL, Judge. 2nd, 1927, and numbered 24, vacate those
portions of the streets and alleys herein-
We are here concerned with the uses to after named, in the Town of Lakeside;
after named, in the Town of Lakeside;
which privately owned land can be put,
and,'
which for "thirty-five years" ' has been
submerged each year by waters of a navi- WHEREAS, the Chelan Electric Com-
gable lake. The submergence at its maxi- pany, as a part of its power project, in-
mum depth (3 to 15 feet), was for approx- tends to impound the waters of Lake
imately 3 months, June 15 to September 15 Chelan, and to raise the same to the elc-
aich year. Ivation of 1100 feet, still water measure-
ment, above mean sea level, and to inutn-
The circumstances and history which date and overflow to said elevation,
furnished the background for the presenta- those portions of the streets and alleys
tion of this unusual problem must be ex- described In said ordinance; and
plained in some detail. - WHEREAS, the Town of Lakeside,
Lake Chelan is a glacial gorge in Chelan party of the second part, desires, for it-
County, approximately 55 miles in length, self and the public, to have the right of
and with a width, generally speaking, of access over the lands and premises in-
from I to 2 miles. Its navigability is eluded within the boundaries of the por-
conceded.3 Prior to 1927, it lay in its nat- tions of said streets and alleys described
ural state with the level of its waters at in said Ordinance, to Lake Chelan, at all
1,079 feet above sea level. By 1891 the stages of water, but not, however, to in-
land involved in this action had passed into terfere with the impoundingor storage of
private ownership being included in the said waters as stated above, or the flow
"Plat of the Town of Lake Park."4 The thereof.
platter dedicated and quitclaimed all streets . NOW, THEREFORE, the parties of
and alleys therein to the use of the public ' the first part, in consideration of One
forever. All of the platted property subse- Dollar ($1.00) and other valuable consid-
quently became a part of the town of eration to them in hand paid by the party
Lakeside, and is now a part of the town of i of the second part, receipt of which is
Chelan. The date of incorporation of hereby acknowledgedtl, do convey and quit
Lakeside does not appeal from the record, claim unto the part of the second part, in
but on May 2, 1927, by ordinance No. 24, perpetuity, the right of access, for itself
the town vacated certain specifically de- i and the public, over the lands included
scribed streets and alleys.- -- within the boundaries 'of those portions
On the same day, the Chelan Electric i: of the vacated streets and alleys herein-
Company and the Lake Chelan Box Facto- ' after described, to Lake Chelan, at all
ry, both Washington corporations, as par-. stages of water, not however, interfering
ties of the first part (and apparently the . 'tith the right of the first party, ChelAt
owners of all of the property contiguous to Electric Company, its successors and'as'-
the vacated streets and alleys and who ac- , signs, to impound the waters of Lake
quired title thereto by virtue of the vaca- 'Chelan and to raise the sanme to the elc-
tion) executed an instrument (duly record- ' vation of 1100 feet, still water measure-
,ed) which contained the following recitals ment above mtcan sea level, and to inun-
and grant: date and overflow to the:said elevation,
THAT WHEREAS, the Town of those portions of the rvacated streets and
Lakeside did by Ordinance passed May alleys hercinafter described; or the im-
pounding or storage. pf the waters of

Lake Chelan as stated above, or the flow ter line of Lake Chelan at both the 1,079
thereof; those portions of the said va- and 1,100 foot levels. The lots, blocks,
sated streets and alleys, being more par- ;' streets and alleys are as shown in the plat
ticularly described as follows, to-wit: of Lake Park, and State Highway 97 has
(Emphasis ours.) Then followed a listing been superimposed. Unfortunately, the
of exactly the same streets and alleys r block numbers, other than 2 and 3, were
which had been included in the vacation omitted, and they will be supplied in our
ordinance. narrative explanation of the drawing.
It should be noted that the public is the The shaded area has been divided into 4
beneficiary of the grant in perpetuity of lettered segments. G and W are the prop-
", * .* * the right of access * * * erties owned by the plaintiffs (the Greens
ovre the lands included within the bounda- and the Wilbours), improved with their re-
ries of those portions of the vacated streets spective homes, and lying partially above
and alleys hereinafter described, to Lake and below the 1,100 foot level: (all of
Chelan, at all stages of water * * *" block 4, plat of Lake Park). A and B rep-
The Chelan EIlectric Company con- resent the two fills made by the defendants
structed a dam, pursuant to a permit by the (the Gallaghers), both fills have access to
Federal Power Commission, which permit- Highway 97, and are now being used as
ted the annual raising of the level of the trailer courts. A includes block 3, plat of
lake to 1,100 feet above sea level, with the Lake Park (except lots 1 and 2), including
requirement that it reach that level by the alley in that block extending from va-
Jtme 15 each year. Thereahfter i May of cated Wharf Street to vacated Main Street;
each year the dam was closed anrd the wa- a portion of block 6, plat of Lake Park, be-
ters gradually rose to the 1,100 foot level, tween the highway and vacated Main
presumably by Jllne 15th. They are rain- Street; also portions of vacated Main and
taine at that level util September wheain Cross ` Streets. B includes a part of block
the d at that level ntil Sep watembers grad- 4, plat of Lake Park between the highway
the;ly subsid ed to the watural 1,079 foot and vacated Cross Street;: lots 18 to 22 in-
level.7 elusive, block 2, plat of Lake Park; and
the portion of vacated Cross Street lying
We come now to a consideration of the
between the indicated portions of blocks 4
right claimed by the defendants, Norman and 2. A portion of tlie intersection of va-
G. Gallagher and Ruth I. Gallagher, his e- cated Cross and Wharf Stteets also has
wife, to fill their land below the 1,100 foot been blockaded by a construction of the de-
level to a height 5 feet above that level, fendants, not shown on the drawing.
and thus prevent its being submerged and
The trial court found that for 35 years
making it available for use at all times.
(Certain fills have now been completed.)
1965) and except for the filling by the de-
The claimed right is challenged by the fendants, commenced in 1961, the waters
plaintiffs (Charles S. Wilbour and Harriet of Lake Chelan
G. Wilbour, his wife; and Chester L.
G. Wilbour, his wife; and Chester L.. covered the lands of Defendants in Blocks
Green and Ruby Green, his wife) who
*Gre en and Ruby Green, his wife) who 2 and 3, Lake Park, including the streets
brought a class action on behalf of them- and alleys in and adjacent to said Blocks
selves and the public asking that the fills and 3 for a d each year from late
be removed, and asking for damages to
spring through September, to a depth of
their own properties caused by the fills. three feet to fifte a depth of
three feet to fifteen feet.
To assist in an understanding of the sit-
And that for the same period
uation, we have prepared this drawing. It
is not drawn to scale, neither is it an ex- the general preblic, including Plaintiffs
hibit in the case and it has been prepared and their respective predecessors in in-
for illustrative purposes only. It is based terest, have used the waters covering the
primarily on exhibit 5, a large drawing by portions of Blocks 2 and 3, Plat of Lake
Mr. Gallagher showing the fills he has Park, now owned by the Defendants, as
made. It shows also the approximate wa- well as the water covering portions of

LAKE CNE&LA

-f~~~I

'41

\ \ .~I ,

CAST S'

A - GALLAGHER FILL, BLOCKS 3 and 6, MAIN and CROSS STREETS
B - GALLAGHER FILL, BLOCKS 2 and 4, CROSS STREET
G - GREEN PROPERTY
W - WILOt0LR PROPERTY
tA 3063
,~ I ,,...; . t

the streets and alleys adjacent thereto, property had been lessened $8,500, and the
for fishing, boating, swimming and for value of the Green property had been less-
general recreational use and that said ened $11,000 by reason of the fills estab-
use was open adverse, notorious and un- lished by the defendants.
interrupted for said period,, during the
period of each year when water covers
the said portions of Block 2 and 3 and The plaintiffs have made an excellent
the adjacent streets and alleys. case on the basis of prescriptive rights.
The trial court ultimately concluded The filling of the vacated streets and al-
(based upon estoppel) that the defendants leys by the defendants cannot he sustained
should not be compelled to remove their on any basis, since they had acquired no ti-
fills, but awarded the plaintiffs damages, tle to them and, in any event, the public
finding that the value of the Wilbour had the right of access over the lands in-

cluded within the boundaries of the vacated ties go to the low water mark) in the areas
streets and alleys to Lake Chelan at all between the high and low water marks.
stages of water. Further, the obvious pur-
pose of the contemporaneous vacation and / The law is quite clear that where
the grant to the public of the right of ac- _,the level of a navigable body of water
cess was to enable the Chelan Electric fluctuates due to natural causes so that
Company to acquire the right to submerge a riparian owner's property is submerged
the streets and alleys and yet to preserve part of the year, the public has the right to
to the public the right of access over them use all the waters of the navigable lake or
to the lake "at all stages of water." , stream whether it be at the high water
However, it is unnecessary to rely on line, the low water line, or in between.
prescriptive rights, or on the rights of the Doemel v. Jantz, 180 Wis. 225, 193 N.W.
public to use the land within the vacated 393, 31 A.L.R. 969 (1923); Diana Shoot-
streets and alleys for access to the lake. ing Club v. Husting, 156 Wis. 261, 145 N.
We prefer to rest our decision on the W. 816, Ann.Cas.1915C, 1148 (1914). In
proposition that the fills made by the de- such situations the riparian owners whose
fendants constitute an obstruction to navi- lands are periodically submerged are said
gation. to have the right to prevent any trespass
While this is a matter of first impres on their land between the high and the low
While this is a matter of first impres-
sion and no exactly comparable case has marks when not submerged However ti-
tie between those lines is qualified hy the
been found, our holding represents the log- e between those lines is qualified by the
public right of navigation and the state
ical extension of establish law in somewhat
may prevent any use of it that interferes
comparable situations.
: with that right. Stewart v. Turney, 237
There wag no private ownership of the N.Y. 117, 142 N.E. 437, 31 A.L.R. 960
land under Lake Chelan in its natural (1923). See annotation, Right of ptublic to
state, and no right to obstruct navigation. use shore of inland navigable lakes be-
It is well settled that if the level of tween high and low water mark, following
the lake had been raised to the 1,100 foot Stewart v. Turney, supra, and Doemel v.
level and had been maintained constantly Jantz, supra, at 31 A.L.R, 960, 978 (1923).
at that level for the prescriptive period, the When the land is submerged, the owner
1,100 foot level would be considered the has only a qualified fee subject to the right
natural level of the lake with the sub- of the public to urse the water over the
merged lands being converted into part of lands consistent with navigational rights,
the lake bed and to state ownership. The
primary and corollary. D)oemel v. Jantz,
public would have the right to use all of supra; Diana Shooting Club v. Iusting,
the water of the lake up to the 1,100 foot
level. State v. Malmquist, 114 Vt. 96, 40
A.2d 534 (1944); Village of Pewaukee v Thus, in the situation of a natural-
ly varying water level, the respective
Savoy, 103 Wis. 271, 79 N.W. 436, 50 L.
RA 836 18rights of the public and of the owners of
RA 836 (1899). the periodically submerged lands are de-
We have here, however, not only the, pendent upon the level of the water. As
raising of the lake level by artificial.' th e level rises, the rights of the public to
means, but the distinctive features that thef use the water increase since the area of
level does not remain constant and that the water increases; correspondingly, the
owners of the land between the 1,079 and rights of the landowners decrease since
the 1,100 foot level can occupy their prop- they cannot use their property in such a
erty during most of the year. , manner as to interfere with the expanded
We find a somewhat comparable situa- 'public rights. As the level and the area of
tion in those'navigable lal~es which have a the water decreases, the rights of the pub-
natural or seasonal fluctuation in extent, lie decrease and the rights of the landown-
and have a recognized high water line and ers increase as the waters drain off their
low water line. However, in those cases land, again giving them the right to exclu-
the problems involved usually hinge on the sive possession until their lands are again
rights accorded riparian owners (whose ti- stubmerged. See. Doemel v. Jantz, supra;

Diana Shooting Club v. Husting, supra. the 1,100 foot level, must be removed.13
When the circumstance of an arti- . The court cannot authorize or approve an
ficial raising of navigable waters to a obstruction to navigation.
temporary higher level is synthesized with We come now to a consideration of the
the law dealing with navigable waters hav- damages awarded by the trial court in the
ing a naturally fluctuating level, the logi- event of an abatement.
cally resulting rule for the protection of We do not affirm as' to damages because
the public interest is that, where the waters the award of $1,800 a year for each year
of a navigable body are periodically raised from 1964 until the fills are abated seems
and lowered by artificial means, the artifi- excessive,"5 and because it was apparently
cial fluctuation should be considered the predicated to a considerable extent on the
same as a natural' fluctuation with the loss of a prescriptive right of view.
rights of the public being the same in both
situations, i. e., the public has the right to Had the lake never been raised, the
go where the navigable waters go, even defendants, in the absence of zoning or
though the navigable waters lie over pri- building restrictions, might have built a
vaitely owned lands. high-rise apartment on block 3 and another
on block 2, cutting off the view from the
As Chief Justice Cassoday of the Wis- plaintiffs' properties. Even with the an-
consin Supreme Court suggested in Mendo-
cousin Supreme Court suggested in Mendo- nual fluctuation, if it were practicable to
ta Club v. Anderson, 101 Wis. 479, at 493, ual and assuming thatfluctuat nof it were practi
78 NW. 185, at 190 (1899)* do so and assuming that 'no zoning or
7 *8 N.W. 185, at 190 (1899): building restrictions were violated, the de-
Certainly, persons navigating -the lake fendants might erect temporary structures
cannot be required or expected to carry on their property each September and re-
with them a chart and compass and move them each May, effectively cutting
measuring lines, to determine whether off the view of the plaintiffs during that
they are at all times within what were . period.
the limits of the lake prior to the con- The plaintiffs have unquestionably sus-
struction of the dam. tained special damages as a result of de-
fendants' wrongful activities, and of a
Following the reasoning of these it
cases we hold that when the level of Lake character that sustains their right to main-
Chelan is raised to the 1,100 foot mark (or tainthis action, Kemp v. Putnat, 47
such level as submerges the defendants' Wash.2d 530, 288 P.2d 837 (1955); IDaw-
land), that land is subjected to the rights son v. McMillan, 34 Wash. 269, 75 P. 807
of navigation, together with its incidental' *(1904); Carl v. West Aberdeen Land and
rights of fishing, boating, swimming, water Improvement Co., 13 Wash. 616 43 P 890
skiing, and other related recreational pur- (1896). However, we do not agree that
poses generally regarded as corollary to there ever was a year-round right of view
the right of navigation and the use of pub- with which there could be no interference.
lic waters. Nelson v, DeLong, 213 Minn. We set aside the judgment for damages,
425, 7 N.W.2d 342 (1942).- When the and remand with instructions to abate the
level of the lake is lowered so that the de- fills made by the defendants insofar as
fendants' land is no longer submerged, then they interfere with the rights of naviga-
they are entitled to keep trespassers off tion, primary and corollary, when the wa-
their land, and may do with the land as ter of Lake Chelan stands at any level up
they wish consistent with the right of navi- to the 1,100 foot level, and with instruc-
gation.when it is submerged. tions to reappraise such special damages as
the plaintiffs may have sustained as a re-
It follows that the defendants' fills, suit of the defendants' wrongful interfer-
insofar as they obstruct the submergence of ence with their rights of navigation, pri-
the land by navigable waters at or below mary and corollary, and the effects of such
- .--- wrongful interference upon their property.

FINLEY, ROSELLINI, ,HAMILTON,
HALE and McGOVERN, JJ., concur.

NEILL, Judge (dissenting in part).
During such periods of flooding, the sur-
Defendants are owners of platted lots face of the lake is thereby expanded and
which originally abutted on Lake Chelan, a the public may well have the right to use
navigable waterway. In 1927, Chelan the waters for all navigational uses. That
Electric Company obtained a permit to is not the issue before us.. Rather, the is-
raise the water of the lake to a level 21 sue is whether the use of these expanded
feet above its natural level. This permit waters, while in existence, confers on the
was in connection with the construction of public the right to have such ilundation of
a damn for electrical power generation. defendants' lands continuld. It is in this
The power company owned the subject lots connection that we nast review the record
at the time this permit was obtained. Sub- for stbstantial evidence to sliplporl the Irial
sequently, it conveyed them subject to its court's finding that the use was adverse.
permit rights to seasonally flood the
premises.' SWas the use such as to put defendants
on notice that a hostile claim was being
Accordingly, we are considering the
exercised so that inaction on defendants'
right of defendants as littoral owners to
raise the level of the land to create upland part would deprive them of the property?
I think not. There would be no reason
out of tiat which is, by reason of the
to object to the boatingi fishing and swim-
flowage easement, seasonally foreshore
ming in these waters as defendants did not
land. We are not here considering fore-
claim a right to the waters. They claim
shore lands of the natural lake. The dis-
tinction is detherminat ra ivake. Thedis-only the seasonally submerged land. The
euse of the lake surface was not, in itself,
Against this asserted right of the de- harmful to defendants' property rights. A
fendants is the claim of plaintiffs that, as protest would have been most unnatural as
members of the public, they have the right well as unneighborly.
of navigation, swimming, boating and rec-
reation on the waters of navigable Lake We have long recognized a different
Chelan, including the waters which sea- rule for adverse possession of open, vacant
sonally submerged defendants' property. and unoccupied iands from that applying to
Plaintiffs further claim a right of view enclosures. Watson v. County Comrm'rs of
over defendants' lands. Plaintiffs are not Adams County, 38 Wash. 662, 80 P. 201
littoral owners as to the natural lake. (1905). In Watson we quoted with ap-
proval from O'Connmlell v. Chicago Termi-
The trial court based its judgment for nal Transfer R. R. Co., 184 III. 308, 56 N.E.
plaintiffs on prescription. The court 355 (1900):
found that the public had seasonally used
the waters overlying defendants' lots for "* * * where land is vacant and un-
fishing, boating, swimming and general occupied and remains free to public use
recreational use for some 35 years, and and travel until circumstances induce the
that such use was open, adverse, notorious owners to enclose it, the mere travel
and uninterrupted for that period. De- across it, without objection from the
fendants do not challenge the finding as to owners, does not enable the public to ac--
the time period. Accordingly, I will as- quire a public road * * * [it] is re-
sume that the use by the public was unin- garded merely as a permissive use."
terrupted and continuous, though seasonal.
However, defendants do challenge the We then observed
finding that the use by the public was ad- [I]n order to give a prescriptive right,
verse. the use must at least be such as'to con-
To properly focus on the issue before us, vey to the absent owner reasonable no-
it should be pointed outt that we are not tice that a claim is made in hostility to
concerned with the public or plaintiffs' use his title. It seems to us that any other
of the waters of Lake Chelan which sea- rule amounts to a practical confiscation
sonally overflow defendants' premises. of private property for public purposes.

This rule is with sound reason because to odically inundate their lands to a specific
take property by user thete must be the el- elevation. I see no reason in law or equity
ement of notice to the owner of the alleg- for preventing such an owner from pro-
edly servient estate that-the user is laying tecting his land against such inundation by
a claim by the tlse. To break an enclosure, raising the grade of the land.
use an occupied area, or use property in
The periodic flooding involved here is
any manner which gives a reasonable per-
entirely different from a natural raising
son notice of a claim against his property
and lowering of the lake level by reason of
will give rise to an inference that the use
. rains, seasonal runoff, and drought. In
is adverse. Cuillier v. Coffin, 57 Wash.
. the latter instance, the littoral owner's
2d 624, 358 P.2d 958 (1961).
rights to the foreshore lands between high
Conversely, use of property which is and low water, whatever these rights may
open, vacant and unimproved creates no be, are subject to the public's navigation
such notice. A reasonable person could rights. Here, the defendants' lots, all of
not be expected to assume hostility solely whlich lie above natural high watcr, are not
from a use which is not interfering with subject to public navigation rights unless
his own use of his own land. It seems there has been a voluntary conveyance,
only reasonable that the rule applicable to eminent domain proceedings, estoppel, or
open, vacant and unoccupied lands should loss through prescription. Unless preclud-
apply to the instant case. In so applying ed by one of the aforementioned reasons,
the rule, I find no evidence at all to snp- . defendants have the right to use their lots,
port a finding of hostile and adverse use. including the right to change the grade
thereof, in order to make any lawful use
I have reviewed the trial court's oral de-
thereof, Accordingly, I do not agree that
cision to determine the basis for his find-
the fill on defendants' lots is unlawful.
ing that plaintiffs' use was adverse. There he
is no discussion of the point. I-e discussed
only the time and continuity elements. I am in accord with the majority's con-
Thus, in my opinion, the finding of a pre- clusion as to the vacated streets. Dlefend-
scriptive right must fall. ants' claim of ownership of the vacated
streets, whatever it may be, is limited by
The majority opinion reaces the conclu- the terms of the 1927 conveyance from
sion that the fill on defendants' lots is to Chelan Electric Company to the public.
be removed on the basis that this fill con- Accordingly, defendants do not have a
stitutes an obstruction to navigation. An- right to raise the level of the street area
alogizing from the rule that the public has and thereby deprive the public of the ac-
the right to the use of navigable water at cess and use of the water over the vacated
both high levels and low levels, subject to streets. Any fill on these vacated streets
the right of littoral owners to reasonably should be abated. I also agree that the
obstruct them with "aids to navigation" damages recoverable are limited to inter-
such as docks, wharfs, etc. (see 31 A.L.R. ference with rights of navigation.
976 (1924) ), the majority holds that fluc-
tuations of water levels which are artifi- I would remand with instructions to lim-
it an abatement order to the area of the
cially created are no different than fluc- ] i
ially reated are no different than flvacated streets and limit plaintiffs' proof
tuations created by nature.
of damages to their loss of navigation
The difficulty, as I view it, is that under / rights, primary and secondary, caused by
the majority's holding there is a'taking of . the fill on the former street area.
defendants' property right for public use
without just compensation. Defendants HUNTER, C. J., and DONWORTH, J.
(through their antecedents in the chain of pro tem., concur in this dissent.
title) have a full fee title diminished only
by the right of the power company to peri-

PARMELE V. EATON

Supreme Court of North Carolina, 1954

83 S. E. 2d 93

Suit for specific performance submitted
to judge and heard by consent on waiver of JOHNSON, Justice
jury trial. G.S. �� 1-184, 1-185, 1-218, Our study of the record leaves the im-
7-65. pression that the judgment below should
be upheld. We rest decision on the findings
The tract of land in suit is located along of fact which bring the conveyances maple
the northern extension of Wrightsville by the State Board of Education to thec
Beach in New Hanover County, It is plaintiff's predecessors in title within the
shown within the dotted lines on the ac- purview of the statutes authorizing and
companying exhibits. At low tide the land validating sales and conveyances of marsh
is completely exposed, but at high tide it is or swamp lands. In'this view of the case
covered by tidal waters from Banks Chan- the question whether the Sneeden grant of
nel, shown on aerial photograph, Exhibit 1841 is valid becomes moot.
B. The plaintiff claims title through mesne - By, statute enacted prior to 1926, now:
conveyances from (1) the State of North codified as G.S. � 146-94; the State Board
Carolina and (2) the State Board of Educa- of Educatioi was given sole authority to
tion of North Carolina. The locus in quo sell and convey all vacant unentered marsh
constitutes about one-third of the lands in- and swamp lands of the State where, as
volved in the previous action entitled Re- limited by the provisions of G.S. � 146-1 et
sort Development Company v. Parmele, the seq., the land is not covered by navigable
appeal from which was heard and deter- waters and the quantity in any one marsh
mined in this Court at the Spring Term, or swamp exceeds 2,000 acres. See Home
1952, and is reported in 235 N.C. 689, 71 Real Estate Loan & Insurance Company v.
S.E.2d 474. An examination of the state- Parmele, 214 N.C. 63,. at pages 69 and 70,
ment of facts and opinion of the Court in 197 S.E. 714. See also Chapter 151, Pub-
that case will serve to point up material lic Laws of 1941, and Article IX, Sec..9
differences in the facts there agreed and (formerly � 10), Constitution of North
those here developed and found. Carona.
By statute enacted prior to 1926, now
The plaintiff, being under contract (dated codified as G.S. � 146-4, it is provided that
November 1, 1953) to convey to the defend- the words "swamp lands" as used in G.S.
ant the locus in quo, tendered deed sufficient � 146-94 "shall be construed to include all
those lands which have been or may now
in form to vest in defendant fee-simple ti- k * 'marsh'
be known and called 'marsh'
tle to the property. The defendant re-
lands, 'pocosin bay,' 'briary bay, and 'savan-
fused tender, alleging title offered to be na, 4 * ' bs
-defective on these grounds: (1) that the
land is covered by navigable waters and 'By Chapter 966, Session' Laws of 1953,
therefore was not subject to grant by the ratified April 23, 1953, applicable to the
State of North Carolina or to sale and con- counties of New Hanover, Pender, and
Board of Education; Onslow, it is provided in pertinent part
veyance by the State Board of Education; that: "The titles to all marsh lands and
and (2) that the plaintiff is estopped by the all swamp lands which have heretofore
decision of this Court in Resort Develop- ' been conveyed by * * * the State
ment Company v. Parmele, supra, to assert Board of Education of North Carolina
titletothe property. . * * * are hereby validated, ratified and
From judgment entered directing that to, ' confirmed, and the persons, firms or corpo-
defendant accept the plaintiff's tender:n- ' rations to whom such marsh lands or
deed and comply with the terms of the con- swamp lands have been conveyed or, grant-
tract, the defendant appealed, assigning er- ed or their successors in title are hereby
rors. declared to have such title thereto as was

purported to be conveyed or granted by There is no public dock * * * any-
any of the conveyances or grants herein- where in that area. Commercial shrimp
before referred to, as fully and as corn- boats do not go up in that area as they
pletely as said conveyances or grants pur- can't get by the bridge. (See highway
ported to convey or grant the same; bridge on aerial photo, Exhllibit B.) The
* * *." bridge isn't high enough * * * and
It is manifest that the deeds made in they wouldn't have water enougli. * * *
1926 and 1944 by the State Board of Edu- the area to the west of Wrightsville Beach,
cation to the plaintiff's predecessors in ti- just before you get to the beach, is called
tle were made in contemplation that por- Harbor Island. * * * I have neer
tions of a single tract of more than 2,000 seen a boat navigate over the area on the
acres of marsh lands were being conveyed. map * * * shown in green. (the land
involved in the case-shown on Exhibit 'A
The trial court found that when the within the dotted lines) * * * at all
locus in quo was conveyed by the State times since 1926 up until the dredging took
Board of Education to the plaintiff's pred- place in 1953 that area (referring to the
ecessors in title in 1926 and in 1944, re- locus in quo) was covered with marsh
spectively, the land so conveyed' was grass. * * * The land * * * was
"marsh land and a portion of a tract 'of a part of a continuous tract of marsh land
marsh land in excess of 2,000 acres." The which ran in every direction. * * * be-
lower court also found that no part of the tween the banks and the mainland."
locus is or was covered at any stage of
the tide by waters which are navigable in The witness Ernest Woolard testified he
fact.' These are the crucial, determinative has lived in the vicinity of Wrightsville
findings and conclusions. The defendant Beach for thirty years and is engaged in
challenges the sufficiency of the evidence the business of boating-taking fishing par-
to support these findings. This brings into ties out in the ocean. He said in part:
focus the testimony of the plaintiff and "* * * Moore's Inlet in * * * 1926
his .witnesses. was some distance back to the south from
The plaintiff testified that the locus "is a where itis presently located. * * * At
part of the marsh land which lies behind a
the banks at Wrightsville Beach and Shell
TIsland. There are many more than 2,007 lmarsh from Stokeley's Channel which goes
Island. There are many more than 2,000t
acres of marsh land in the area, perhaps through here to the end of Harbor Is-
50,000 acres. It is a complete body of land, except for tw creeks which t
.marsh land goingright up to Pamlico through the marsh, one closer up here to
Sound * *g ." the northwest and the other down toward
the east. All the rest was marsh. There
Richard F. Meier, member of the Board was one creek up close to the end of Ilar-
of Aldermen of Wrightsville Beach, testi- bor Island. It was just a creek. * * *
fled in part: "In 1926 Moore's Inlet was It is not possible to navigate a boat into
somewhere about Columbia Street. * * * this marsh land. * * * After the inlet
south of the pier * * * shown (on the moved to the north the sand beat across it
aerial' photograph) going out into the agd wherever the sand beat across the
ocean. * * * The land * * * to the marsh it killed the marsh grass. * * *
west of and adjacent to the * * * Dis- Marsh grass won't grow on sand. * * *
posal Plant was marsh land. By marsh Marsh grass won't grow unless it's covered
land I mean that it was land with grass with salt water on high tide * * *. At
growing on it. * * * At exceptionally an average high -tide most of the marsh
high water the whole marsh was covered land would be covered by water a foot or
with approximately 6 inches of water over a foot and a half. * * * The little
the marsh. * * * Sunset Lagoon wbich channels which run through the marsh
is shown on the exhibit was dredged out. grass are called little guts. They are just
* * * Iluglh acRtae & Company dredged little drains. It is not possible to navigate
it ott for the purpose of building more in those guts. * * * I don't think it is
land. * * * There is no public terminus possible to navigate any kind of a boat
or any sort of terminus in Sunset Lagoon. over marsh grass at high tidtle. * * * ou

could drag a row boat over it. * * * I
ami familiar with the area on Exhibit B The foregoing testimony and other
shown in green (nbw in (lotted lines) prior evidence of like import supports the crucial
to its being filled. It was not possible to findings of fact of the court below to the
navigate a boat in it at any stage of the effect (1) that the land in 'tiestion when
tidtle. It was marsh grass. * * * there conveyed by the State Board of Education
was no kind of fishing that could be dohie was part of a tract of marsh land in excess
with a small skiff in that area. You couldn't of 2,000 acres and (2) that no part of the
do nothing because the grass was out on locus is or was covered by waters which
high tide. It was impossible to use that are navigable in fact.
for any sort of navigation."
With us the ebb and flow of the tide
D. B. George, whose business is fishing is not the criterion for determining navi-
in the Wrightsville area, said Harbor Island gability. The more practical test is wheth-
was created by being "pumped 'tp." IIe er, in its ordinary state, a body of water
testified in part: "I worked on the dredge has capacity and suitability for the usual
that pumped up Harbor Island in * * * purpose of navigation by vessels or boats
1917. * * * Captain Price carried this such as are employed in the ordinary course
dredge around through Spring Landing of water commerce, trade, and travel. See
Channel (shown on aerial-photo, Exhibit 56 An.Jur., Waters, Sec. 179; Nome Real
B) which goes in just below where the Estate Loan & Insurance Co. v. Parmele,
bridge is at Wrightsville. * * * This supra, 214 N.C. 63, 197 S.E. 714. Briefly
is the channel shown to the north end of stated, the rule with us "is that all water
I-Tarbor Island which goes around to the courses are regarded as navigable in law
Inland Waterway. * * * I had occasion that are navigable in fact." Resort De-
to try to get through Spring Landing Chan- velopment Co. v. Parmele, supra, 235 N.C.
nel last winter. I was in a boat which drew 689, 71 S.E.2d 474, 475.
about two feet of water. The tide was
about two hours ebb, that is two hours It is noted that the record here presents
after high tide. * * * My son thought no question as to conflict between riparian
we could get through, so we went on and and navigation rights.
got about half way down the channel and
found we couldn't get through. * * * As to the defendant's plea of estop-
Spring Landing Channel is not used for pel, it is enough to say that new facts al-
commercial boats of any kind. It's not used leged in the pleadings and developed at the
for nothing more than fellows going oyster- trial relating to the locus in quo, showing
ing and clamming. * * * Fishermen that the instant case relates to only a small
don't use Spring Landing Channel, they portion of the land involved in the former
use Stokeley's Channel going out the Inland case, Resort Development Co. v. Parmele,
Waterway. * * * It is possible to get supra, 235 N.C. 689, 71 S.E.2d 474, and
- through Spring Landing Channel at high that the land was purchased by the plaintiff
tide with a small boat which draws two after the passage of the ;Act, Chapter 966,
feet of water." Session Laws of 1953, validating titles to
,,d H arrelso tst i: marsh land, prevent the plaintiff in this
Clyde Harrelson testified: "* * * The
action from being estopped from asserting
tide normally rises 31/2 feet at VWrightsville action from being estopped from assertg
tide oma. y rise 3� fmeet at ' ightsvil and proving marketable title to the locus in
Beach. * * * No commercial fishing qo.
boats fish in the area of Sunset Lagoon.
* * * The area (in controversy) is a The judgment below will be upheld.
part of a tract of marsh land which is in
Affirmed.
excess of 2,000 acres that runs from the
beach to the mainland."

*by,~~~~~~~~~~~~

i ..F -I 'I 51 '41

SECTION 3. Other Public Servitudes

UNITED STATES V. CHANDLER-DUNBAR CO.

United States Supreme Court, 1913

229 U.S. 53

(The Chandler-Dunbar Co. had erected a dam
and was producing and selling power. Congress
chose to destroy the water-power value in order
to promote navigation.)

From the foregoing it will be seen that the controlling
questions are, first, whether the Chandler-Dunbar Com-
pany has any private property in the water power capacity
of the rapids and falls of the St. Marys River which has
been "taken," and for which compensation must be made
under the Fifth Amendment to the Constitution; and,
second, if so, what is the extent of its water power right
and how shall the compensation be measured?
That compensation must be made for the upland taken
is not disputable. The measure of compensation may in
a degree turn upon the relation of that species of property.
to the alleged water power rights claimed by the Chandler-
Dunbar Company. We, therefore, pass for the present
the errors assigned which concern the awards made for
such upland.
The technical title to the beds of the navigable rivers of
the United States is either in the States in which the
rivers are situated, or in the owners of the land bordering
upon such rivers. Whether in one or the other is a ques-
tion of local law. Shively v. Bowiby, 152 U. S. 1, 31;
Philadelphia Company v. Stimnon, 223 U. S. 605, 624,
632; Scott v. Lattig, 227 U. S. 229. Upon the admission
of the State of Michigan into the Union the bed of the
St. Marys River passed to the State, and under' the law
of thatS Ah conveyance of a tract of land upon a
navigable river carries the title to the middle thread.'
Webber v. The Pere Marquette &c., 62 Michigan, 626;
Scranton v. Wheeler, 179 U. S. 141, 163; United Statee v.:
Chandler-Dunbar Water Power Co., 209 U. S. 447.
The technical title of the Chandler-Dunbar Company
therefore, includes the bed of the river opposite its upland
on the bank to the middle thread of the stream, being the
boundary line at that point between the United States
and the Dominion of Canada. Over this bed flows about
two-thirds of the volume of water constituting the falls
and rapids of the St. Marys River. By reason of that

fact, and the ownership of the shore, the company's claim
is, that it is the owner of the river and of the inherent
power in the falls and rapids, subject only to the public
right of navigation. While not denying that this right
of navigation is the dominating right, yet the claim is
that the United States in the exercise of the power to ,
regulate commerce, may not exclude therights of riparian
owners to construct in the river and upon their own sub-
merged lands such appliances as are necessary to control
and use the current for commercial purposes, provided
only that such structures do not impede or hinder naviga-
tion and that the flow of the stream is not so diminished
as to leave less than every possible requirement of naviga-
tion, present and future. This claim of a proprietary
right in the bed of the river and in the flow of the stream
over that bed to the extent that such flow is in excess of
the wants of navigation constitutes the ground upon
which the company asserts that a necessary effect of the
act of March 3, 1909, and of the judgment of condemna-
tion in the court below, is a taking from it of a property
right or interest of great value, for which, under the Fifth
Amendment, compensation must be made.
' This is the view which was enitertained by Circuit Judge
V/Jisohi in the 6ie6't be'o'w, and is supported by most
carfefulI~ii, bfA fact' and law and an elaodre and abl
opinion. The question is, therefore, one which from every
standpoint deserves careful consideration.
This title of the owner of fast land upon the shore of a
navigable river to the bed of the river, is at best a qualified
one. It is a title which inheres in the ownership of the
shore and, unless reserved or excluded by implication,
passed with it as a shadow follows a substance, although
capable of distinct ownership. It is subordinate to the
public right of navigation, and however helpful in pro-
tecting the owner against the acts of third parties, is of
no avail against the exercise of the great and absolute
power of Congress over the improvement of navigable
rivers. That power of use and control comes from the
power to regulate commerce between the States and with
foreign nations. It includes navigation and subjects
every navigable river to the control of Congress. All
means having some positive relation to the end in view
which are not forbidden by some other provision of the
Constitution, are admissible. If, in the judgment of
Congress, the use of the bottom of the river is proper
for the purpose of placing therein structures in aid of
navigation, it is not thereby taking private property for
a public use, for the'owner's title was in its very nature
subject to that use in the interest of public navigation.
If its judgment be that structures placed in the river and

upon such submerged land, are an obstruction or hin-
drance to the proper use of the river for purposes of navi-
gation, it may require their removal and forbid the use
of the bed of the river by the owner in any way which
in its judgment is injurious to the dominant right of navi-
gation. So, also, it may permit the construction and
maintenance of tunnels under or bridges over the river,
and may require the removal of every such structure
placed there with or without its license, the element of
contract out of the way, which it shall require to be re-
moved or altered as an obstruction to navigation.. In'
Gilman v. Philadelphia, 3 Wall. 713, 724, this court said: "7
"Commerce includes navigation. The power to regu-
late commerce comprehends the control for that purpose,
and to the extent necessary, of all the navigable waters
of the United States which are accessible from a State
other than those in which they lie. For this purpose
they are the public property of the nation, and subject
to all the requisite legislation by Congress. This neces-
sarily includes the power to keep them open and free from
any obstructions to their navigation, interposed by the
States or otherwise; to remove such obstructions when
they exist; and to provide, by such sanctions as they may
deem proper, against the occurrence of the evil and for
the punishment of offenders. For these purposes, Con-
gress possesses all the powers which existed in the States
before the adoption of the national Constitution, and
which have always existed in the Parliament in Eng.,
land.
"It is for Congress to determine when its full power
shall be brought into activity, and as to the regulations
and sanctions which shall be provided."
In Gibson v. United States,~166 U. S. 269, it is said
(p. 271):
"All navigable waters are-under the control of the
United States for the purpose of regulating and improving
navigation, and although the title to the shore and sub-
merged soil is in the various States and individual owners
under them, it is always subject to the servitude in respect
of navigation created in favor of the Federal Government
by the Constitution."
Thus in Scranton v. Wheeler, supra, the Government
constructed a long dyke or pier upon such submerged
lands in the river here involved, for the purpose of aiding
its navigation. This cut the riparian owner off from direct
access to deep water, and he claimed that his rights had

been invaded and his' property taken without compensa-
tion. This court held'that the Government had "not
"taken" any property which was not primarily subject to
the very use to which it had been put, and, therefore,
denied his claim. Touching the nature and character of a
riparian owner in the submerged lands in front of his up-
land bounding upon a public navigable river such as the
St. Marys, this court said (p. 163):
"The primary use of the waters and the lands under
them is for purposes of navigation, and the erection of
piers in them to improve navigation for the public is
entirely consistent with such use, and infringes no right
of the riparian owner. Whatever the nature of the in-
terest of a riparian owner in the submerged lands in front
of his upland bounding on a public navigable water, his
title is not as full and complete as his title to fast land
which has no direct connection with the navigation of
such waters. It is a qualified title; a bare technical title,
not at his absolute disposal, as is his upland, but to be
held at all times subordinate to such use of the submerged
lands and of thfe waters flowing over them as may be con-
sistent with or demanded by the public right of naviga-
tion."
So unfettered is this control of Congress over the naviga-
ble streams of the country that its judgment as to whether
a construction in or over such a river is or is not an ob-
stacle and a hindrance to navigation, is conclusive. Such
judgment and determination is the exercise of legislative
power in respect of a subject wholly within its control.
In Pennsylvania v. Wheeling Bridge Company, 18 How.
421, 430, this court, upon the facts in evidence, held that
a bridge over the Ohio River, constructed undervan act of.
the State of Virginia, created an obstruction to navigation,
and was a nuisance which should be removed. Before
the decree was executed -Congress declared the bridge a
lawful structure and not an obstruction. This court there-
upon irfused to issue a mandate for carrying into e'ect <;: i
its own decree, saying: .. , '3 '-.,.: - ' -':r ;.
"Although it still may be an obstruction in fact, it is:"'
not so in the contemplation of law. We have already said,
and the principle is undoubted, that the act of the legisla- '
ture of Virginia conferred full authority to erect and main-'-
tain the bridge, subject to the exercise of the power of;
Congress to regulate the navigation of the river. That;
body having in the exercise of this power, regulated the;
navigation consistent with its preservation and continua-.
tion, the authority to maintain it would seem to be com-
plete. That authority combines the concurrent powers

of both governments, State and Federal, which, if not
sufficient, certainly none can be found in our system of
government."
In Philadelphia v. Stimson, supra, and in Union Bridge
Company v. United States, 204 U. S. 364, manr of the
cases are cited and reviewed andwe need add. nothing.
more to the discussion.
The conclusion to be drawn is, that the question of
whether the proper regulation of navigation of this river
at the place in question required that no construction of
any kind should be placed or continued in the river by
riparian owners, and whether the whole flow of the stream
should be conserved for the use and safety of navigation,
are questions legislative in character; and when Congress
determined, as it did by the act of March 3, 1909, that
the whole river between the American bank and the inter-
national line, as well as all of the upland north of the
-present ship canal, throughout its entire length, was
"necessary for the purposes of navigation of said waters
and the waters connected therewith," that determination
was conclusive.
So much of the zone covered by this declaration as con-
sisted of fast land upon the banks of the river, or in islands
which were private property, is, of course, to be paid for.
But the flow of the stream was in no sense private prop-s
erty, and there is no room for a judicial review of the
judgment of Congress that the flow of the river is not in
excess of any possible need of navigation, or for a determin-'
ation that if in excess, the riparian owners had any private
property right in such excess which must be paid for if
they have been excluded from the use of the same. . .
It is a little difficult to understand the basis for the claim
that in appropriating the upland bordering upon this':
stretch of water, the Government not only takes the land:
but also the great water power which potentially exists
in the river. The broad claim that the water power of '
the stream is appurtenant to the bank owned by it, and
not dependent upon ownership of the soil over which the
river flows has been advanced. But whether this private
right to the use of the flow of the water and flow of the
stream be based upon the qualified title which the com-
pany had to the bed of the river over which it'flows or
the ownership of land bordering upon the river, is of no \
prime importance. In neither event can there be said to
arise any ownership of the river. Ownership of a private
stream wholly upon the lands of an. individual is con-
ceivable; but that the running water in a great naviga-
ble stream is capable of private ownership is inconceiv-
able. . .

Upon what principle can it be said that in requiring
the removal of the development works which were in the
river upon sufferance, Congress has taken private prop-
erty for public use without compensation? In deciding
that a necessity existed for absolute control of the river
at the rapids, Congress has of course excluded, until it
changes the law, every such construction as a hindrance
to its plans and purposes for the betterment of naviga-
tion. The qualified title to the bed of the river affords
no ground for any claim of a right to construct and main-
tain therein any structure which Congress has by the act
of 1909 decided in effect to be an obstruction to naviga-
tion, and a hindrance to its plans for improvement. That
title is absolutely subordinate to the right of navigation
and no right of private property would have been in-
vaded if such submerged lands were occupied by struc-
tures in aid of navigation or kept free from such obstruc-
tions in the interest of navigation. Scranton v. Wheeler,
supra; Hawkins Light House Case, 39 Fed. Rep. 77, 83.
We need not consider whether the entire flow of the river
is necessary for the purposes of navigation, or whether
there is a surplus which is to be paid for, if the Chandler-
Dunbar Company is to be excluded from the commercial
use of that surplus. The answer is found in the fact that
Congress has determined that the stream from the upland
taken to the international boundary is necessary for the
purposes of navigation. That determination operates to
exclude from the river forever the structures necessary for
the commercial use of the water power. That it does
not deprive the Chandler-Dunbar Company of private
property rights follows from the considerations before
stated.
It is said that the twelfth section of the act of 1909
authorizes the Secretary of War to lease upon terms
agreed upon, any excess of water power which results
from the conservation of the flow of the river, and the
works which the Government may construct. This it
is said is a taking of private property for commercial uses
and not for the improvement of navigation. But aside
from the exclusive public purpose declared by the eleventh
section of the act, the twelfth section declares that the
conservation of the flow of the river is "primarily for the
benefit of navigation, and. incidentally for the purpose of
having the water power developed, either for the direct
use of 1heiUnited States, or by lease *... . . through
the Secretary of War.". If the primary purpose is legiti:
mate, we can see no sound objection to leasing any ex.-:?
cess of power over the needs of the Government. The

practice is not-.unusual in respect to similar public works
constructed by state governments. In Kaukauna Co. v.
Green Bay &c. Canal, 142 U. S. 254, 273, respecting a
Wisconsin act to which this objection was made, the
court said:
"But, if, in the erection of a,public dam for a recog-
nized public purpose, there is necessarily produced a sur-
plus of water, which may properly be used for manufac-
turing purposes, there is no sound reason why the State
may not retain to itself the power of controlling or dis-
posing of such water as an incident of its right to make
such improvement. Indeed, it might become very neces-
sary to retain the disposition of it in its own hands, in
order to preserve at all times a sujicient supply for the
purposes of navigation. If the riparian owners were al-
lowed to tap the pond at different places, and draw off
the water for their own use, serious consequences might
arise, not only in connection with the public demand for
the purposes of navigation, but between the riparian
owners themselves as to the proper proportion each was
entitled to draw-controversies which could only be
avoided by the State reserving to itself the immediate
supervision of the entire supply. As there is no need of
the surplus running to waste, there was -nothing objec-
tionable in permitting the State to let out the use of it
to private parties, and thus reimburse itself for the ex-
penses of the improvement."
It is at best not clear how the Chandler-Dunbar Com-
pany can be heard to object to the selling of any excess of
water power which may result from the construction of
such controlling or remedial works as shall be found ad-
visable for the improvement of navigation, inasmuch as
it had no property rigfit in the river which has been
"taken." It has, therefore, no interest whether the Gov-' -
ernment permit the excess of power to go to waste or
made the means of producing some return upon the great
expenditure. : -
The conclusion therefore is that the court below erred '
in awarding $550,000, or any'other sum for the value'of
what is called "raw water," that is the present money
value of the rapids and falls to the Chandler-Dunbar
Company as riparian owners of the shore and appurtenant
submerged land.. .

The judgment of 'the court below must be reversed and the
cases remanded with direction to enter a judgment in
accordance with this opinion.

67
67

STATE V. TWIFORD ET AL.

Supreme Court of North Carolina, 1904

136 N.C. 603, 48 S.E. 586

OLARK, 0. J. There was evidence on the 'guilty"; (3 and 4) that as the creek leads
part of the state tending to show that the' fMom the sound to the land of the employer
waterway In question leads off from Curri- of the defendants, and not to any public
tuck Sound, and is about 400 yards wide and place, and there is no public road adjoining
C feet 10 Inches deep in the channel at its or touching the creek, and any one landing
mouth, and the following widths at these at any point on the creed must go over the
distances from its mouth: 500 yards wide at land of said rlparian owner, they should find
1 mile, 400 yards wide at 1% miles, and 60 the defendants not guilty; (5) that, if the
yards at Shipyard, about 2 miles above; that evidence is believed, the creek is not navl-
the obstructions were placed In the stream at gable, and is owned by Hannah M. Lyons,
a point 350 yards from the mouth of the creek. ;' and she bad a right to place the posts In the
At this point Jean Guide creek is about 850 creek, and the defendants, acting under her
'yards wide, and boats drawing 5 or 6 feet i orders, were not guilty. The court charged
of water could sail up to the point 'Where the the Jury, among other things: "If this
obstructions were placed, and 1% miles stream or bay is properly described and gen-
above' the mouth of the stream. ,.The. water - . erally known as Jean Guide creek, and is
course in question has been used by the pub- wide enough and deep enough for navigation
lie for 85 years "for fishing and. harborig,' .by boats ordinarily used for carrying traffic
and as a passway, and for landing purpses,"' and commerce on the sound waters, and was
and "as an harbor for protection in timge of 'r0uired and used for such purposes by the
storms," and "as a thoroughfare by the pub- Reesslte t peo ;e
lie, as long as the witness could remember, erialy elgaged i yolk j it wopidbeal
and by persons coming in from the sound,who Ilfetable nulsate istbi c .ri.tt :lteidd .
would go up to the head of the creek at t uryare.satled beyond i l
Shipyard, leave their boats, and then go by doubt,it was that character.;of stream,!
land, and he has seen boats carrying freight used and required, by. public convenience,
hind at the pier." Barges drawing 3s feet and that defendants put the obstructions in
of water and transporting timber can go to the stream, the defendants' would be guilty'
Shipyard, turn, and come out This witness and you should so return your verdict". Doe
also testified that he had seen a sloop 200 fendants excepted. "If the stream is not
yards above the point at which the obstruc- navigable by vessels of the klnd described,
tions were placed. There was also evidence or if the stream was so shut In or Is so sit-
tending to show that the land covered by uated that it was not used or required for
the waters of Jean Guide creek is claimed traffic or coimmerce by. the convaience of the
by Hannah M. Lyons, of New Jersey, who public or persons generally engaged in traf-
acquired her alleged title through mesne con- fle with vessels on the souid, then It would
veyances from a grant from the state of be no nuisance to obstruct It or shut it Up,
North Carolina to onq Hodges Gallop, dated and the jury should acquit the defendants."
May 30, 1872. It also appeared that the land The defendants again excepted. The ques-
on both sides of the creed belongs to Hannah tion was submitted to the jury as one of
M. Lyons, and that no public road leads fact under the above Instructions. The rest
from the creek, but only a private road for of the charge, which fully set out the conten-
the use of the owner and her tenants. The tions of the parties and the law, was not
defendants, Twiford and Tate, admitted that excepted to. These are the only exceptloos,
they, by the orders of said riparian owner, and we find no error.
placed the obstructions in the creek in Octo- If a stream is "navigable in fact [as the
ber, 1902. The stakes constituting the ob- jury found under the above instructpnas], it
struction are strongly driven down, and their is navigable in law." Gould on Waters (3d
tops rise 3 or 4 feet above the surface of Ed.) � 67. The capability og being used for
the water. They are 2/2 feet apart. There purposes of trade and travel In the usual
is a gate near the center of the stream, used and ordinary modes Is the test, and not the
exclusively by the owner, which is kept extent and manner of such use. State v.
locked, so as to prevent the general public Eason, 114 N. C. 787, 19 S. E. 88, 23 L. R, A.
from using the waterway. . 520, 41 Am. St. Rep. 811; Hodges v. Williams,
The defendants excepted to the refusal of 95 N. U. 331, 59 Am. Rep. 242;. Ingram v.
the court to charge (1) that, if the jury be- Threadgill, 14 N. O. 59; Wilson v. Forbes, 13
Sieved the evidence, the creek is not navi- N. 0. 30. The same ruling is maintained in
gable, and they should find the defendants United States Supreme Court. The Daniel
not guilty; (2) that as the obstructions were Ball, 10 Wall. 557, 19 L. d. 0099; The Mon-'
placed by the defendants under orders' "of tello, 11 Wall. 411, 20 L. Ed. 191; Id,, 20
the owner of the land on both sides of the Wall. 430, 22 L, Ed. 3891. Navigability. is a
creek, and title to the stream belongs also to' question of fact, dependent upon the. depth
her, they should return a verdict of not of water and other circumstances, and was

properly submitted to the Jury in the charge. - State v. Baum, supra. The defendant's colln-
Navigability cannot be affected by the condO- tention, that to make a waterway it must
tions on the adjacent land, suck as there be- :have a public termination, cannot be sus-
ing a large town or the shore, with numerous tained.' That may come later, but that will
streets and wharves, or whether, as here, not make the stream deeper or more navi-
one riparian owner has a monopoly of the gable when it comes. This stream is an arm
land, with no public road to the water, thus 'or part of Ourrituck Sound, from which
cutting off access by laud. It is the navl- sound there is a passageway through the
gability of the water that is the test, its ac- waters of Albemarle and Pamlico Sound,
cesslbility by water, and not accessiblity and up various rivers, to many towns in the
by land; else whether bays, estuaries, creeks, state. 'The' stream is in Itself navigable in
and rivers are publici juris would depend fact, and its navigation is certainly "In some
upon whether or not riparian owners have degree required by the necessity or conven-
monopolized the ownership of the adjacent -fence Of the public." The right to anchor
soil. :, is essential In navigation, und Jedn Guide
Land covered by navigable waters was creek, according to the evidence in the case,
not subject to entry at the date of the grant 'has been used "as a harbor of protection in
to Gallop, and is not now, and the grant of Itime of storms." In Gould on Waters (8d
the land covered by Jean Guide creek is d.? 95, it is'said:. "The right of naviga-
void. Batt. Rev. c. 41, � 1 (1); Code, � 2751 ' lon includes the right to anchor as Inciden-
(1); Skinner v. Hettrick, 73 N. 0. 53; State ta';to'its beneficial enjoyment." The Whole
v. Spencer, 114 N. O. 777, 19 S. E. 93; Bond ni/ttei' is thus summed up by Shaw, 0. J.,
v. Wool, 107 N. C. 139, 12 S. B. 281; W9ol 'in Attorney General v. Woods, 108 Mass. 430,
v. Edenton, 115 N. C. 10, 20 S. E. 165; ,tol- 1 ,11 Am. Rep. 380: "If water Is navigable for
ley v. Smith, 130 N. 0. 85, 40 p8 l:87. 1 )pleasure boating, it must be regarded as navy-
Even if the grant passed a title to the land, ':rigable water, though no craft has ever been
covered by the waters of the creek, the title l iput upon it for the purpose of trade or agri-
became vested in the owner subject to the culture. The purpose of navigation is not
public easement-the right of navigation. the subject of inquiry, but the fact of thle
Broadnax v. Baker, 94 N. C. 675, 55 Am. Rep. capacity of the water for use in navigation."
633; Hodges v. Williams, 95 N. C. 331, 59 It would be a serious detriment to the public
Am. Rep. 242; Gould on Waters (3d Ed.) � 87. if water, capable of such usefulness, as here,
The above test, the capacity for navigation, can be made private property by buying up
Is laid down in State v. Narrows Island Club, the adjacent land. The control of such wa-
100 N. C. 477-481, 5 S. E. 411, 412, 6 Am. St. ter belongs to the public, and is not appur-
Rep. 618, as follows: "Navigable waters are tenant to the ownership of the shore. It is
natural highways, so recognized by govern- not a case "where the tall goes with the
ment and the people; and hence it seems to hide."
be accepted as part of the common law of Nor is it material that the former riparian
this country, arising out of public necessity, owner charged people one-fourth of the catch
convenience, and common consent, that the for fishing in the creek, and that' some in
public have the right to use rivers, lakes, their'ignorance submitted to the exaction.
sounds, and parts of them, though not strict- This no more proves ownership of a naviga-
ly public waters, if they be navigable in fact, ble stream than the exaction of toll by feu-
for the purposes of a highway and naviga- ,dal barons on the, Rhine proves ownership
tion, employed in travel, trade, or commerce. of that great artery of commerce today by
Such waters are treated as publici jurls, in those who have succeeded them in the own-
so far as they may be properly used for such ership of the lands on which their castles
purposes in their natural state." Mr.'Jus- once stood. Navigable waters are free. They
tice Douglas in a more recent case (State v. cannot be sold or monopolized. They can
Baum, 128 N. C. 600, 38 S. E. 900) says that belong to no one but the public, and are ret
in early days "the navigability of a stream served for free and unrestricted use by the
depended more upon the temper of those liv- public for all time. Whatever monopoly may
lug along its banks (Indians) than upon its obtain on land, the waters are unbridled
natural features, * * * but that now the yet.
public have the right to the unobstructed No error.
navigation as a public highway for all pur-
poses of pleasure or profit of all water cours-
es, whether tidal or inland, that are in their
natural conditions capable of such use. The
navigability of a water course is therefore
largely a question of fact for the jury, and
:its best test is the extent to which it has
been so hsed by the public, when unrestrain-
ed.? ' ,: ' ..
Xr tji~lvdence tends to show that Jean
-Iek has been used by the puklce for
b ars for the purposes of flshlngj _0 a
pahway', and as a harbor for protectoiN in
time of storms. "These conditions consti-
tute ample evidence of a navigable stream."

CAPUNE V. ROBBINS

Supreme Court of North Carolina, 1968

273 N.C. 581, 160S. E. 2d891

Plaintiff instituted this civil action Au- ocean by paddleboard, his only means of
gust 17, 1965, to recover $7,500.00 compen- travel, and was unaware of defendant's at-
satory damages and $25,000.00 punitive tempted restrictions on the use of the
damages on account of an alleged wilful, ocean waters alongside defendant's pier.
wanton, intentional and malicious assault According to defendant's testimony, de-
by defendant on plaintiff. An order was fendant had no knowledge of plaintiff's
then entered for the arrest of defendant as sporting and publicity venture and assumed
provided in G.S. Chapter 1, Article 34, the paddleboard had been brought to his
"Arrest and Bail," upon failure to give bail premises by land transportation ...
in the amount of $10,000.00. .
BOBBITT, Justice.
Uncontroverted evidence tends to show
the facts narrated below. We consider first whether defendant had
a legal right to forbid and prohibit plain-
Plaintiff, then about 22, was attempting tiff from passing -under the pier on his
a trip from Seagate, Coney Island, New paddleboard.
York, to Florida, on an eighteen-foot-long
paddleboard, without mast or sail. Plain- The Federal Statute, 33 U.S.C.A. � 403,
tiff testified: "I would paddle it with any relating to the obstruction of navigable wa-
hands and steer with my feet. Paddlitng I ters, required that defendant's predecessor,
,placed my arms in front of .me and piul'l before constructing a pier, obtain permis-
.down alongside the bciard. The total sion to do so from the U. S. Corps of En-
length of the trip I had planned was ap- gineers. Otherwise, the issuance of the
proximately 1,154 miles, paddling all the permit did not enlarge or impair defend-
way." He came "down the entire coast on ant's littoral rights.
the paddleboard." Subject to the authority and rights of
The pier, which is "about 20 feet above the United States respecting navigation,
the water," was operated "for the purpose flood control and production of power,
of sport fishing only." Defendant charged Congress, by enactment of the Submerged
fishermen a fee of $1.00 a day to fish Land Act (1953), 43 U.S.C.A. � 1311 et
from the pier. On August 15th, a Sunday, seq., relinquished to the states the entire
there were "approximately 90 to 100 fish- interest of the United States in all lands
ermen on the pier." Defendant operated beneath navigable waters within state
"a concession stand and tackle shop" on - boundaries, inclusive of submerged lands
the shore end of the pier. Nearby, on the within three geographical miles seaward
shore, there was a picnic area. To avoid from the coast of each state. See State ex
interference with the fishermen, defendant rel. Bruton v. Flying "W" Enterprises, Inc.,'
did not permit surf casting or bathing on 273 N.C. 399, 160 S.E.2d 482.
his premises and undertook to prohibit
boating and surfboarding in the waters 150 Our statutes, prior to enactment of
feet each side of 'the center of the pier. A Chapter 683, Session Laws of 1959, relat-
igeet facing 'those approaclilg from the ing to "Lands Subject to Grant," were cod-
roacl was in these words: "No soliciting ified as Chapter 146, Article 1, of the Gen-
and boats allowed on these wpremises." eral Statutes, recompiled 1952. Based on
There was posted on each sidle of the pier the statutes brought forward and codified
a sign in these words: "No fishing or in 1952 as G.S. � 1461 and G.S � 1466,
swimming near the pier." it was held that lands covered by navigable
waters were not the subject of -entry with
Plaintiff and defendant were strangers. one exception, to wit: Riparian owners
According to plaintiff's testimony, plaintiff were given a right of entry for the re-
approached defendant's premises from the stricted purpose of using such lands for

erecting wharves on the side of deep water [2] In Bond v. Wool, 107 N.C. 139, 12
in front of their shorelines. Atlantic & N. S.E. 281, involving a controversy between
C. R. Co. v. Way, 172 N.C. 774, 90 S.E. two riparian owners,' neither had a grant
937; Land Co. v. Atlantic Hotel, 132 N.C. for any of the property extending between
517, 44 S.E. 39, 61 L.R.A. 937 and cases, the shoreline and the channel, and each re-
cited. Accord: Barfoot v. Willis, 178 N. lied upon his rights as riparian owner.
C. 200, 100 S.E. 303. In Atlantic & N. C. This Court, in opinion by Avery, J., said:
R. Co. v. Way, supra, Walker, J., for the "In the absence of any specific legislation
Court, said that the State "granted merely on the subject, a littoral proprietor and a
a privilege or easement in the land and riparian owner, as is universally conceded,
waters covered thereby, for the single pur- have a qualified property in the water-
pose of building wharves in aid of com- frontage, belonging by nature to their
merce and a better enjoyment of the shores land; the chief advantage growing out of
of navigable waters." . the appurtenant estate in the submerged
ofavgalewr."... _ land being the right of access over an ex-
G.S. � 146-3, as now codified, provides tension of their water fronts to navigable
that no submerged lands of the State may water, and the right to construct wharves,
be conveyed in fee but that easements piers, or landings subject to such general
therein may be granted in the manner pre- rules and regulations as the legislature, in
scribed. the exercise of its powers, may prescribe
for the protection of public rights in rivers
or navigable waters." (Our italics.) This
"The Department of Administration may statement is quoted with approval by Win-
grant, to adjoining riparian owners, ease- borne, J. (later C. J.), in O'Neal v. Rollin-
ments in lands covered by navigable waters son, 212 N.C. 83, 192 S.E. 688. Accord:
or by the waters of any lake owned by the Gaither v. Hospital, 235 N.C. 431, 70 S.E.
State for such purposes and upon such 2d 680; Jones v. Turlington, 243 N.C. 681,
conditions as it may deem proper, with the 92 S.E.2d 75.
approval of the Governor and Council of In Bell v. Smith, 171 N.C. 116, 118, 87
State. The Department may, with the ap- S.E. 987, 989, where it was held that "(n)o
proval of the Governor and Council of
person has a several or exclusive right of
State, revoke any such easement upon the fishery in any of the public navigable wa-
violation by the grantee or his assigns of ters of the state," Clark, C. J., for the
the conditions upon which it was granted. Court, said: "Th right of fishing in the
Court, said: "The right of fishing in the
"Every such easement shall include only navigable waters of the state belongs to
the front of the tract owned by the ripari- the people in common, to be exercised by
an owner to whom the easement is granted, them with due regard to the rights of each
shall extend no further than thq deep wa-
ter, and shall in no respect 'obstruct or im- or individual control either by grant or by
pair navigation. long user by any one at a given point."
The question arises as to whether the
right of a littoral proprietor to construct a
front of the lands of any incorporated town,
the governing body of the town shall regu-
late the line on deep water to which waters of greater depth authorizes him to
wharves may be ondeepwabuilt." towhic exclude the public from the use of the wa-
ters of the ocean under and along such
pier. Although no decision of this Court
bearing directly on the question has come
Nothing in the record indicates an to our attention, decisions of the Court of
easement in the submerged land was grant- Appeals of New York relating to "(t)he
ed to defendant or to any of his predeces- strip of land that lies between the high and
sors by the State. Absent such grant, his low water marks and that is alternately
.rights depend solely upon his status as a wet and dry according to the flow of the
littoral or riparian owner. tide," known as the "foreshore," (Black's
Law Dictionary, Fourth Edition, p. 777)
bears significantly upon the question.

In Barnes v. Midland Railroad Terminal hibit plaintiff from passing under defend-
Co., 218 N.Y. 91, 112 N.E. 926, the plain- ant's pier on his paddleboard in continua-
tiff sought to restrain the obstruction of tion of his journey to the south.
part of the foreshore of Staten Island. On
an earlier appeal, Barnes v. Midland R. R.
Terminal Co., 193 N.Y. 378, 85 N.E. 1093,
127 Am.St.Rcp. 962, the relative rights of
the littoral owner on the one hand and of Defendant having failed to show preju-
the public on the other were defined. It dicial error, the verdict and judgment of
was held that the littoral owner had the the court below will not be disturbed.
right to construct a pier in order to pro-
vide a means of passage from the upland to No error.
the sea; that the public must submit to any
necessary interference to their right of
passage over the foreshore, but that unnec-
essary obstruction was an invasion of the
public right. In the later decision, where
an injunction granted by the lower court
was modified and affirmed, the court, in
opinion by Cardozo, J., said: "If passage
under the pier is free and substantially
unobstructed over the entire width of the
foreshore, the plaintiffs are entitled to no
more. The pier was not built for their use,
and is not to be maintained for their con-
venience. Weems Steamboat Co. v. Peo-
pe's Steamb.oat Co., 214 U.S. 345, 29 S.Ct.
661, 53 L.Ed. 1024, 16 Am.Cas. 1222. But
the passagb under the pier must be free and
substantially unobstructed over the entire
width of the foreshore. This means that
from high to low water mark it must be
at such a height that the public will have
no difficulty in walking under it when the
tide is low or in going under it in boats
when the tide is high." Accord: Town of
Brookhaven v. Smith, 188 N.Y. 74, 80 N.E.
665, 9 L.R.A.(N.S.) 326; Aquino v. Rie-
gelman, 104 Misc. 228, 171 N.Y.S. 716.
It would seem the public would have equal
rights to use without unnecessary obstruc-
tion the ocean waters seaward from the
strip constituting the foreshore.
Conceding (1) defendant's ownership of
the pier and adjacent beach and his right
to prohibit the use thereof by others, and
(2) that the use defendant was making of
the pier and adjacent beach was lawful, it
does not follow that defendant could law-
fully prohibit the use of the ocean waters
beneath the pier as a means of passage by
water craft in a manner that involves no
contact with the pier itself.

Here evidence fails to disclose any
legal right of defendant to forbid and pro-

SECTION 4. Changes In the Shoreline Area

In most coastal states, boundaries along the shoreline are
considered ambulatory; the actual location of the seaward boundary
of an upland owner's land changes as a result of natural or artifi-
cial changes in the shoreline. Generally, where the shoreline is
gradually changed, any boundary determined by the mean high water
line (or whatever line chosen) changes in a like manner. However,
sudden changes, such as those caused by a storm, may not affect
the boundary in a legal sense.

The processes of change have given rise to use of the follow-
ing terms:

(1) Accretions are gradual additions to the land resulting
from deposit of material by the action of the water.

(2) Erosion is the gradual wearing away of the land by the
wind and water.

(3) Reliction occurs where land formally covered by water
becomes dry because of the gradual recession of the
water.

(4) Avulsion is a sudden change in the shoreline or the bed
of a stream, as may be caused by storms or flooding.

While the courts often use these terms interchangeably, it is
helpful to remember the basic processes involved. The cases which
follow illustrate the legal solutions which have developed to settle
disputes which arise when natural and artificial processes affect the
rights of the state and upland owners.

HUGHES V. WASHINGTON

United States Supreme Court, 1967

389 U.,S. 290

MR. JUSTICE BLACK delivered the opinion of the Court.
The question for decision is whether federal or state
law controls the ownership of land, called accretion, grad-
ually deposited by the ocean onadjoining upland prop-
erty conveyed by the United States prior to sta*edd.
The circumstances that give rise to the question are
these. Prior to 1889 all land in what is now the St/ite
of Washington was owned by the :United States;except
land that had been conveyed to private parties. At that
time owners of property bordering the ocean, such as the
predecessor in title of Mrs. Stella Hughes, the petitioner
here, had under the common law a right to include within
their lands any accretion gradually built up by the ocean.'
Washington became a State in 1889, and Article 17 of
the State's new constitution, as interpreted by its Su-
preme Court, denied the owners of ocean-front property
in the St/ate Uany further rights in accretion that might in
the future be 'formed between their property anid' e
ocean. This is a suit brought by Mrs. Hughes, the suc
cessor in title t, the original federal.grantee, against th
State of Washington as owner of the tidelands to deter-
mine whether the right to future accretions which existed
under federal law in 1889 was abolished by that provi-
sion of the Washington Constitution. The trial court
upheld Mrs. Hughes' contention that the right to accre-
tions remained subject to federal law, and that she was
the owner of the accreted lands. The State Supreme
Court reversed, holding that state law controlled and
that the State owned these lands. 67 Wash. 2d 799, 410
P. 2d 20 (1966). We granted certiorari. 385 U. S. 1000
(1967). We hold that this question is governed by fed-
eral, not state, law and that under federal law Mrs.
Hughes, who traces her title to a federal grant prior to
statehood, is the owner of these accretions.
While the issue appears never to have been squarely
presented to this Court before, we think the path to deci-
sion is indicated by our holding in Boraz, Ltd.. v. Los
Angeles, 296 U. S. 10 (1935). In that case we dealt
with the rights of a California property owner who held
under a federal patent, and in that instance, unlike the
present case,'the patent was issued after statehood. We

held that
"[t]he question as to the extent of this federal grant,
that is, as to the limit of the land conveyed, or the
boundary between the upland and the tideland, is
necessarily a federal question. It is a question which
concerns the validity and effect of an act done by the
United States; it involves the ascertainment of the
essential basis of a right asserted under federal law."
296 U. S., at 22.
No subsequent case in this Court has cast doubt on the
principle announced in Borax. See also United States v.
Oregon, 295 U. S. 1, 27-28 (1935). The State argues,
and the court below held, however, that the Borax case
should not be applied here because that case involved no
question as to accretions. While this is true, the case
did involve the question as to what rights were conveyed
by the federal grant and decided that the extent of
ownership under the federal grant is governed by federal
law. This is as true whether doubt as to any boundary
is based on a broad question as to the general definition
of the shoreline or on a particularized problem relating
to the ownership of accretion. See United States v.
Washington, 294 F. 2d 830, 832 (C. A. 9th Cir. 1961),
cert. denied, 369 U. S. 817 (1962). We therefore find no
significant difference between Borax and the present case.
Recognizing the difficulty of distinguishing Borax,
respondent urges us to reconsider it. Borax itself, as well
as United States v. Oregon, supra, and many other cases,
makes clear. that a dispute over title to lands owned by
the Federal Government is governed by federal law,
although of course the Federal Government may, if it
desires, choose to select a state rule as the federal rule.
Borax holds that there has been no such choice in this
area, and we have no difficulty in concluding that Borax
was correctly decided. The rule deals with waters that
lap both the lands of the State and the boundaries of the
international sea. This relationship, at this particular
point of the marginal sea, is too close to the vital interest
of the Nation. in its own boundaries to allow it to be
governed by any law but the "supreme Law of the Land."
This brings us to the question of what the federal rule
is. The State has not attempted to argue that federal
law gives it title to these accretions, and it seems clear to
us that it could not. A long and unbroken line of de-
cisions of this Court establishes that the grantee of land
bounded by a body of navigable water acquires a right
to any natural and gradual accretion formed along the

shore. In Jones v. Johnston, 18 How. 150 (1856), a
dispute between two parties owning land along Lake
Michigan over the ownership of soil that had gradually
been deposited along the shore, this Court held that
"[l]and gained from the sea either by alluvion or dere-
liction, if the same be by little and little, by small
and imperceptible degrees, belongs to the owner of the
land adjoining." 18 How., at 156. The Court has re-
peatedly reaffirmed this rule, County of St. Clair v.
Lovingston, 23 Wall. 46 (1874); Jefferis v. East Omaha
Land Co., 134 U. S. 178 (1890),2 and the soundness of
the principle is scarcely open to question. Any other
rule would leave riparian owners continually in danger
of losing the access to water which is often the most
valuable feature of their property, and continually
vulnerable to harassing litigation challenging the loca-
tion of the original water lines. While it is ttue that
these riparian rights are to some extent insecure in any
event, since they are subject to considerable control
by the neighboring owner of the tideland," this is insuffi-
cient reason to leave these valttable rights at the mercy
of na~turtal hehofifiitna which may in no way affect the
interests df the tideland owner. See Stevens v. Arnold,
262 U. S. 266, 269-270 (1923). We therefore hold that
petitioner is entitled to the accretion that has been grad-
ually formed along her property by the ocean.
The judgment below is reversed, and the case is re-
manded to the Supreme Court of Washington for further
proceedings not inconsistent with this opinion.
Reversed and remanded&

MR. JUSTICE MARSHALL took no part in the considera-
tion or decision of this case.

OREGON EX REL. STATE LJAND BOARD
V.
CORVALLIS SANT) AND GRAVE]T, COMPANY

United States Supreme Court, 19)77

97 S. Ct. 582

Mr. Justice REHNQUIST.,delivered the The other portion of the land underlies
opinion of the Court.
opinion of the Court. ' the river in an area known as Fischer Cut,
:This: lawsuit began' :when 'the State :'of ' .:which was not a part of the riverbed at: the
Oregon sued Corvallis- Sand and Graveil time Oregon was admitted to .the' Union-
Company, an Oregon corporation, to'settle The trial court found that prior to a flood
the ownership of certain lands' undellying ' which occurred in November 1909, the Wil-
the Willamette River. The Willamete 'is a - lamette ';flowed: around ':a peninsula-like,
navigable river, and this land. is located ' formation' known as Fischer Island, but
near Corvallis, Oregon.. The river is not an that by 1890 a clearly discernible overflow
interstate boundary. .:., channel across the neck of the peninsula
Corvallis Sand'had been digging in ,the had developed. Before 1909 this channel
disputed part of the riverbed for 40 to 50 crried the flow of the river only at its
intermediate or high stages and the main
years without a lease from the State. The intermediate or high stages, and the main
State brought an ejectment action against channel of the river continued to flow
around Fischer Island. ' `But in November
Corvallis Sand, seeking to recover 11 sepa around ischer Island. in November
rate parcels of riverbed, as well as damages 1909, a major flood, in the, words of the
for the use of the parcels.' The tate's ,regon triaL court, "suddenly and with
complaint alleged that by virtue of its soy- great force and violence converted Fischer
ereignty it was the owner in fee simple of'. Cut into. the 'main channel 'of the river."
the disputed portions of thie"riverbed, and -"' The trial court, sitting'without a jury,
that it wasentitled to immediate possession awarded all. parcels in dispute, except for
and damages. Corvallis Sand denied the. :the Fischer Cut lands,.to the State. That
State's' ownership .of the bed.' '*"; , - court found that ;.the State. had acquired
Eac..............;. in th' ': � sovereign title :to .those ands,.upon admis-
Each party was pirtially successful in the
III-'oiin into ithe,Uniqn,- and.thit it had no1;
Oregon courts,' and we granted cross peti- ' T at
tions�F~or �celtiorari ,'42 ''108 46 ,;conveyed that title.. ,The aState was also
tions'for .'certiorari,' .423" 'UJ.148.., 46 . awarded damages to recompense it for Cort,
L.Ed.2d 636. Those courts understandably' 'lawlldednda'ages tor p it fo cor
.;~allis Sand's use of the lands':.
felt-that our recent decision in' Bonelli Cat- - :-' a
tie Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 'With respect to the Fischer Cut lands, the
38 L.Ed.2d 526 (1973), 'required that they tal court'found that avulsion rather than
ascertain and apply principles of'. federal accretionhad caused:the change in the
common. law, to the controversy.'": Twenty." channel of:the river, and therefore the title
sixtats iave joined in three amicus.briefs to the lands remained in Corvalli Sand, the'
'urging that we' recon-sider:.Bo.nel,. -.upra, original owner of the land before it became
becuise:of what they assert is its signifi- riverbed.
cant 'departure from long established prece- The Oregon Court of Appeals affirmed.
dent. in this Court ,. ..' ' .That court felt bound, under :;Bonelli,' to
. : , ,- .' . ', .:'- , . apply federal .common law to'the resolution
of this property dispute;' In so doing, the
: ' The nature .of the case::and the'dionten- court found that the trial'eourt's .award of
tions of the parties may be' brieflystated,: Fischer Cut to Corvallis Siand was correct
Title to'two distinct portions of land has either under the theory of avulsion, or un-
been at issue throughout.', The 'first of der the so-called exception to the accretion
these portions has apparently been within 'rule, announced in. Commissioners v. United
the bed of the Willamette:;River 'since Ore- States, 270 F. 110 (CA8 .1920).:' The court,
gon's admission into the Union. finding that preservation of the State's in-

terest in navigation, fishing and other relat- lard's Lessee '.v. Hagan' as Xa basis 'upon
ed goals did not require that it acquire which federal common law could supersede
ownership of the new bed, rejected the ar- state law' in the determination of land ti-
gument that the State's sovereign title to a ties. Precisely the contrary is true; in Pol-
riverbed follows the course of the river as it lard's Lessee itself the equal footing doc-
moves. . ' . trine resulted in the State's acquisition of
title notwithstanding the efforts of the
Federal Government to dispose of the lands,
In this Court, Oregon urges that we e- i ion in another way
ther .modify Bonelli or expound "federal The equal footing doctrine did not,
common law" in such a way that its title to therefore, provide a basis for federal law to
all the land in question will be'established; supersede the State's application of its own
Corvallis -Sand urges :that. we:, interpret law in deciding title to the Bonelli land, and
"feideal. common. law" in such. a: manner state law should have been applied unless
that:it will prevail. ' Amici urge-'thiat we there were present some other prihciple of
re'-eJimine:Bonelli', because in 'their view federal law requiring state law to be'dis-
that'"a se' Represented a sharp -break With placed. The only other basis 4 for a colora-
well-est'ablished previous decisiions: o's;f'the- ble claim of federal right in Bonelli was
Nit.Cou~,~/i,- A.: - ,-:.% i :;:: D that the Bonelli land had originally been
patented to its predecessor by the United
Our analysis today leads us to conclude States,' just as had most other land in the
that our decision to apply federal common western States. But that land- had long
law in Bonelli was incorrect.' We first sum- been in private ownership and,'henrce, under
marize the basis for this conclusion, and the great weight, of precedent from this
thentelaborate in greater detail in Parts III Court,-.subject to the general body of state
and IV, infra. :. A:: ' .:;I: ":'.i" ':. property law. WI.cbx, v.' Jackson, 13 Pet.
. The title to the land underlying the 498, 17 10 LEd. 264 (18. Since the
Colorado River at 'the time Arizona was application of.federal comion law i'a re-
admitted to the Union vested in the State qui neither by the equal footing dotrine
as of that date under the rule of Pollard's ' ior by any other claim of federal right; we
Leee v an, upra ltou federal :now believe that title to Athe:'Bonelli land
Lessee v. Hagan, sur uld have been governed beirizona la
law may fix the initial bounda~r line be- -'!d have bethen govern.ei zoa tlahe
tween fast lands and the riverbeds at the isputed w p
. , , .. .ds in the bed of the Wl//a'ette River-in
time 'of a State's admission to the Union, in the ed.of the Wi. .itte .Rvrin
. , -:, �. .� X~fis case should be decide.:'iiet:-as a mnat-.
the State's title to the riverbed vests abso- - * - . - , i h b ', , s .
lutely as of the time of its admission and is, Ho .la � '
not subject to later defeasance by operation -. ':'. ..-. ;-
of any doctrine of federal'common law. '"" ' ..' .;
Wilcox v. Jackson, 13 Pet. 498, 10 L.Ed. 264 -.Pollardsi Lessee Iv Hag insyipra, holds
(1839); Weber v. Harbor Commissioners, 18I hat the Statce 'eway titeto' ts
'bk :do. n1ig:a]Jie .'ikate'r/vay- %v thin its
Wall. 57,21 L.Ed. 798 (1873). beds .
boundaries upon admission 'to ihe Union,
Bonelli's thesis that the eual foot- and contains not the slightest suggestion
ing doctrine would require the eftect of a that such title is "defeasible"! in the techni-
movement of the~ river'upon title to the . cal. sense of that term.i 'The" issuetherewas
riverbed to be resolved under federal com- . 'hwhe'" a' federal':pate iii .....fter the
mon :law.-wae in error;' Once the equal admission of Alabama to the'Union, could
footing doctrine had vested title to the riv- ' validly convey lands that had nderlain
erbed inArizona as of tletime of it admis-' navigable waters -upon Alabama's admis-
sion to the?'Union, theJ'fed'{eof'that 'doctrine '. -sion; The court'had before it the following
was spent; it, did not op.erate gafter that ury charge, given in the eeetment action
date .to determine -what effect onititles the jury charge, given in teo ejetment action
movement- of the "river-:,mrght.,hajye. :.. Ou ' ' - "'"
oight h O~u" ""That if [the jury] beiev'ed ' that' the
error, as we now See it, "was' to0'view 'the ..
equa, footing doctrinee enunciated in Pol- premises sued for' were below usual high
equa1,footing doctrine enunciated in Pol-

water-iiark, at the time Alabama was Thus tinder Polhai~k 'Lessee the State's
Admitted into the union, then the act of title to la~ndi underlying navigablewaters
CoIngress, and the patent in pursuance wihnt budre is,'conferred not by
thereof, could give'the'plaintiffs no title, Congres's but~, by th Constitution' itself.-
'whether the waters had receded by the The rule :laid Aow'i~ in Pollard's Lessee -has
labour of man only, or by alluvion ' been followed in an unbroken line of cases
3' H"'"', at' 220. ~~which make it clear that -the Btitle. thus
The Court regarded the case6 as one of -sig- acquired by' the State. is absolute so far as
nal impotne an tosr~ htte any federal principle of land titles is' con-
decision was approached "with 'a just sense cerned. For- example, in: Weber v. Harbor
of its great -importance to all the states of Comsinr,'8Wall,;~7,, 65-0, 21 L.Ed.
th n"i aid particularly to the new 798:~(1873), the.-Court'.'reaffirmed the doc-
*ones.". Ibid. Mr. :Justice-,Catron, in his tflOOPlIr Les-f
.dissenting, opinion,: commented' that' hie i'pn the'diso"~oG.lionait
deemed. the. case "the most Jimportant con- .the- Uniion upion. equalfotinag -with -the
*'ovrsy ever brought before th~is'codrt, el- 'oiilISaeashtfjroperty in,' and
ther as it respects the amount of property ~dominiion and -s'veerOgn tyv'nber,-- all soils
involved, or the, principles on, : which the - deth.idvars ihiiimis
present j ugetproceeds .,.asd~t te~Sae-~t~it bicun
at 235. The Court gave careful considera- - gto todispose o the'ik ~'aypr of
-tion Ito the role of mte.Uited. States in : -ad .cis in'ch 'manner asshe might
-holding the lands in-- utisti-0 Antu'_ .o , de proper, subject only to the para-
the new' States~~, and tou-le eonito' tia mutright. 'of-' navigation* over the
the new Statei~would be a~mutte pb.At' " waters .. -''(Emphasis added.)
equal-footing,', ih-., all -respect `~-whateVe In Barney v.. Keokuk, 94 U.S, 824, 338, 24
"with theoriginal Sae Id. t L.Ed. .224 (17) te C'ourt,,exiended the
224 itin' Matin v.- addel 16Pet267, doctrine'. to Waters which w-er~e nontidal but
~~~~~~~~~~~~~-1.-11E 99(84) teCutotdthat nonetheless" nayigable, consf~tent with its
- ~~~~~~~~~the originat sa,ites held, the ,botw right '-- earlier extension of admiralty '-jurisdiction
to 'all'their ~navigable 'waters --and, th soils to such waters in The Genessee Chief, 12
unde the forthei owncommon use, sub How. 443, 13 ~L.Ed. 1058 (1851). And in
ject only to the rights since surrendered by `Shively, v. Bowl by,- 152 U.5j. 1, 14 S.Ct. 548,
the Constitution." 3 How. at 229. The 38LE:81(84,teCourt recounted in
Court thea concluded:-l extenso the- many cases which had followed
"-!irtThe shorea, of'navigal waes the doctrine. of Pollard's Lessee. In sum-
and the soils under them,:were, fi&o grant- -marizing' its holding, 15-U., at 57-58, 14
ed, by the 'Constitution to' the United S.Ct.- at 569, the Court stated:V
States; .buti were reserved to the states "~K The new states adni'tted-into~the Un-
respectively.: Secondlyp,'The new- 'states ion since'.the adoption othe constitution
h tave th san'e rights oegt,'n .have --the 'same -rght%,:,as, te original
jurisdiction v'Odr this'subject as the origio states in the tide waters,:and in the lands
~nalstts"brdy The t ight' of the~. une hm ithin their" respetv jui
United St'aites to the'Iiublic lands,' and the ' ilctloons2.` The title and '~Ighti of riparian
-power of Congress to make all needful. '-"'or littoral prpretr ifi-.te si eo
rules' and regulations for the -sale- and the high-Water mark, therefore, are gov-
disposition thereof, conferred, no power to - - erned by the laws of. the several ~tates,
grant to the'plaintiffs the land 'in conitro- 'subject to the rights' Ta I to the U nit-
vers. ~ . - - ." id, at'23. - - --~dStates by the .constitutiorn"
In so holding, -the ~Court..established the ttfjie tiuieoour'dcs i i Bnll thi~
absolute title of~ the - States to the. beds' of line of 'authority stood side' y'side with'
navigabl'e "waters, a title which neither a and wholly consistent with, 'other caes- re-
provision in the Act admitting the State to quiring the application 'of, federal. law tc~
the Union ~'nor a grant from Congress to a ' -questions o ladtitle or" bou ndais
third party -was ciapable "of defeating..-- Where Mexico had patented tidal lands to a

lrivate owner before ceding to the United ' the Court of Appeals to 'remand for a new
States the territory which ultimately be- tr;.:! to allow the city to6'`ttempt to prove
came the State of California, California did 'that some'portion' of the lands described in
not succeed to the ownership of such lands :: the federal 'patent was in 'fact tideland.
upon her admission to the Union.': Knight
:: The Court :'went'on:':t:: hold that" the
v., United Land Association, 142 U.S. 161, 12 Court ent onto that the
boundary'btween t' 'uplda nd tideland
S.Ct. 258, 35 L.Ed. 974 i1891). If a navig . deland
ble stream is an interstate boundary, this . . dterninedb;federala
Court; in the exercise of its original juris- ;';at 22, 6 S.Ct., at:25:4'i: same principle
diction over suits between States, has neces. would require. that. dermination of the
�sarily developed a body of federal common ; nitial boundary betweena riverbed, which
'law to determine the effect of a change in -: -the State acquiredeunder;'the~'qual footing
the bed of the stream on the boundary. doctrine, andriparanftinds ikewise be
See,' e. g., Nebraska v. Iowa, 143 U.S. 359, decided as;a: matter '.b)fe raw: rather
12 S.Ct.'396, 36 L.Ed.'186 (1892); A.-rkansas than state law. But that determination is
v. Tennessee, 246 U.S. -158, 38 S.Ct. 301, 62 solely for the purpose of fixing the bounda-
L.Ed. 638 (1918). ", Congress possesses by rik.. .' Llie riverbed acquired by the State .t
-virtue of its commerce power a "navigation- .,the time of its admisson to the Union;
al servitude" with respect to navigable ::thereafter: the role 'of 'the. equal - footing
waters. . doctrine is ended, and the land is subject to
"....All navigable waters are under the con- the laws'of'the State. "'The expressions in
trol of the United States for the purpose Bonelli suggesting a more expansive role
of regulating and improving navigation, for the equal footing doctrine are contrary
and although the title to the shore and to the line of cases following Pollard's Les-
submerged soil is in the various states see. . ' ''-
and individual owners under them, it is held
'.': :Fr" e.xaml this Court heldas that
always subject to the serv;itude in respectchanges in the ntour of the
of niavigation created in favor of the fed- lsub /e n a b ee ntour of the
,eral government by the constitution." land, t transfers of the
feraln government b thland, are governed by the state law. Joy v.
Gibson v. United States, 166 U.S. 269, 's:Lois, 201 U.S.332, 34 26 S.Ct.478,
271-272, 17 S.Ct. 578, 579, 41 L.Ed. 996 81, 50 L.Ed, 776 (1906). ' Indeed the rule
(1897). ,-that. lands :once having. passed 'from the
In Borax Consolidated, Ltd. v. Los Ange-rnmnt ar subjct to th laws
i.::~IFEedteral Government .are' s/bjeeto the laws
les, supra, this Court also found a basis to 'of tlc State in which they lie antedates
apply federal law, but its rationale does not --Pollard's Lessee. lAsIong ago as 1839, the
dictate a different result in this case. In Court said- . . :.,-..;. ; ..:......'
Borax, the city of Los Angeles brought suit '.:'We hold the true principle to be this,
to quiet title in certain land in Los Angeles that' whenever the question in.any Court,
Harbor. Los Angeles claimed the land un- state or:federal, is, whether a tle to.land
der a grant from the State of California, which had once been th& poperty-oP fthe
whereas Borax, Ltd. claimed the land as a .:United States has passed,' that question
su&cessor in interest to a federal patentee. must be resolved by the laws of the Unit-
The federal patent had purported to convey 'i d. States;' but that when'.eer.'a, according
a specified quantity of land, 18 and eighty- 'to 'those' laws,, the title .sall' have passed,
eight hundredths' acres, according to a sur- thea that'property,.like at. other prolprty
vey''by the General Land Office. This :' inthe state, is subject to state fgislation;t
Court recognized that if the patent purport- s. .so far as., that legislatid: is' 'CQnsistent
ed to convey lands which were part of the : with: tiamission that 'the title passed
tidelands, the patent would be invalid to and vestd according to the'laws 'ofthe
that extent since the Federal Government -United States."' Wilcox v. 'Jackson, 13
has no power to convey lands which are Pet. 498, 517, 10 L.Ed. 264 (1839). (Em-
rightfully the State's under the "equal foot- phasis added.)
ing doctrine. Id., at 17-19, 56 S.Ct., at The contrary'approch woqld result in' a
26--27. The Court affirmed the decision of perverse ap.Jlication of the equal footing

doctrine. An original State would be free were presumed nonnavigable, the Court
to choose its own legal principles to resolve clearly articulated the.rule. that the States
property disputes relating to land under its could formulate, and rn6dify, rules of ripari-
riverbeds; a subsequently admitted State an ownership as they saw fit:
would be constrained by the equal footing "Whether, as rules of property, it would
doctrine to apply the federal common law now be safe to change these doctrines
rule, which may result in-property law de- [arising out of the confusion of the origi-
terminations antithetical to the desires of
hal classification of"nontidal waters 'as
that State. See, Bonelli, supra, 414 U.S., at
-nonnavigable] where theyi.have been ap-
332-338, 94 S.Ct., at 529 (Stewart,. J., dis- �.Y' plied, as before 'emarked, is for the sev-
senting). o --: - eral States themselves to determine. If
Thus, if the lands at issue did pass under they choose to resign to the riparian pro-
the equal footing doctrine, state title is not prietor rights which properly belong to
subject to defeasance and state law governs them in their sovereign-capacity, it is not
subsequent dispositions.7 . for others to raise objections. In our
view of the' subject the correct principles
; " IV : . -.were laid down in Martin v. Waddell, 16
A similar result obtains in the case Pet. 367, 10 L.Ed.' 997; Pollard's Lessee v.
of riparian lands which did not pass under . Hagan, 8 How. 212, 11 L.Ed. 565, and
the equal footing doctrine. This Court has Goodtitle v. Kibbe, 9 id. 471, 13 LEd. 220.
consistently held that state law governs is- These cases related to tidewater, it is
sues.relating to this property, like other true; but they enunciate principles which
ieal:property, unless some other principle of are equally applicable' to 'all navigable
federal law requires a different'result. waters." Id., at 338. ' ..
Under our federal system, property own- In Shively v. Bowlby, supra, the Court
ership:is not governed' by a general federal canvassed its previous decisions and rnm!,il-
law,'-but-rather by the laws of. the'several sized that state law controls riparian owner-
States.: "The. great body 'of iaw in this ship. The Court concluded that grants by
-'couitry which controls acquisition, trans- Congress of land bordering navigable
mission, and transfer of :property,: and waters ". .. leave the question of the
defines the rights of its owners in relation use of the shores by the owners of uplands
to the state or to private parties, is found in to the sovereign control of each state, sub-
the statutes and decisions of the state." ject only to the rights vested by the consti-
Davies Warehouse v. Bowles, 321 U.S. 144, tution in the United States." 152 U.S., at
155, 64 S.Ct.:474, 480, 88 L.Ed. 635 (1944). 58, 14 S.Ct., at '570. As the Court again
This is particularly true with respect. to real emphasized in Packer v. Bird, 137 U.S. 661,
property, for even when 'federal common 669, 11 S.Ct. 210, 212, 34 L.Ed. 819 (1891):
law was in its heyday under the teachings " . [W]hatever incidents or rights
of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 'attach to the ownership of property con-
(1842), an exception was carved out for the veyed by the government will be deter-
local law of real property. - Id., at 18. See . 'mined by the'states, subject to the condi-
United States v. Little Lake Misere Land tion that their rules do not impair the
Co., 412 U.S. 580, 591, 93 S.Ct. 2389, 2396, 37 efficacy of the grants, or the 'use and
L,Ed.2d'187 (1973). enjoyuincilt of the property, by the
This principle applies to the banks and grantee."
shores of waterways, and we have consist- This doctrine was squarely applied to the
ently so held. Barney v. ' Keokuk, supra, case of a riparian proprietor in Joy v. City
involved an ejectment action by the plain- of St. Louis, supva. The land at issue had
tiff -against the city involving certain land originally been granted to the patentee's
along the banks of the Mississippi River. predecessor by, Spain, and Congress had
After noting that the early state doctrines confirmed the rrant and issued letters pat-
regarding the ownership of the soil of non- ent. This Court held that the fact that a
tidal waters were based upon the theh dis- plaintiff claimed accretions to land patent-
carded English view that nontidal waters ed to his predecessor by the Federal

Government did not confer federal question cases such as this, considerations of stare
jurisdiction, and implicitly rejected any no- decisis play a less'important role. than they
tion that "federal common law"s had any' do in cases involving substantive property
application to the: resolution; Central to law. Cf; The Passenger Cases, 7 How. 283,
'this result was the holding that: 470, 12 L.Ed. 702 (1849) (Taney, C. J., dis-
-'" "As this.land in controversy is not the senting); Burnet v. Coronado Oil & Gas Co.,
l: Iand described in the letters patent or-the 285 U.S. 393,.405-4-1i, 52 S,Ct.. 443, 446-449,
acts of Congress, but, asls stated in the 76 LEd. 815 (1932) (Brandeis, J.,dissent-
' ''petition, is formed by accretions' or grad- ing); Smith v. Allwight 21 U.S.'649 64
U. ts from the river; whether-such
ts from the riv ether such .C 757,88 L.Ed. 987 (1944). Even if we
l Iand belongs to the plaintiff~ is, ndwer the ere to focus on the effect of our decision
cases just cited, a. matter of local'or state
upon rules of substantive property law, our
' > law, and not one arising under the laws concern for unsettling titles would lead us.
... ' 'of the United States Id, -at 343, 26 to overrule Bonelli, rather than to retain it.
S.C':... at 481. ' ' -:: -,-'i.; -: Seie Minnesota Co. v. National Co., 3 Wall.
332, 334, 18 fLEd. 42 (1865). Since one
* :V;; - system of resolution of property disputes
Upon full reconsideration of our de- has been adhered.to.from 1845 until 1973,
cisiol. ... 3onelli, we conclude that it was and the.'other only for the past three years,
wrong in treating the equal footing doc- a return to the former would more closely'
trine as a source of federal common law conform; to the expectations 'of property
after that doctrine.ihad vested title to the owners than.'would adherence to the latter.
riverbed in the State of Arizona as of the. We are also'persuaded that, in large part
time o!! its admission to the Union. We also because of the positions taken in the briefs
thing there was no other basis i0 that case, presented to the. Court in Bonelli, the Bo-
nor is there any in this case, to support the helli decision was.not.a deliberate repudia-
applicalion of federal common law to over- .'tion of all the cases which had gone before.
ride state real property law. 'There are 'We there proceeded on 'the view, which we
obviously�institutional considerations which now think to have been mistaken, that Bo-
we must face in deciding whether for that rax, supra, should He read so expansively as
reason: to overrule Bonelli or to adhere to it, - to in effect overrule susilentio the line of
and those considerations -cut both ways. cases following Pollard's Lessee.
Substantive rules governing the law of real - :
For all of these reasons, we have now
property are peculiarly subject to the prin-'
ciple of stare decisis. See United States v. decided that Bonelli'sapplication of federal
Title Ins. Co.,'265 U.S. 472, 44 S.Ct. 621, 68 , common law to cases such ..this must.be
L.Ed. 1110 (1924). o red.
Here, however, we are not dealing with The judgient. under revew is vacated,
aubstantive property law as such, but rath- and- the case 'remanded .td the, Supreme
er with an issue substantially related to the Court of Oregon. for further' proceedings
constitutional sovereignty of the States. In :not inconsistent'with this opiniion.

STATE V. ASItMORE

Supreme Court of Georgia, 1976

224 S. E. 2d 334

UNDERCOFLER, Presiding Justice.
The court wishes to acknowledge that the the high and low water marks was public
factual statement and Division I of this land and "oystermen" had no private rights
opinion were authored by Justice Gunter. in the oyster beds they may have located on
These two appeals involve claims to' the public land. This made an investment in
foreshore and clraims to land above the fore- planting oyster beds hazardous and, it was
foreshore and claims to land above the fore- arped, deterred the growth of the com-
shore (above the high water mark) as' the
mercial oyster industry. Consequently, it is
foreshore moves back and forth, outward
toward the ocean and inward toward the 'agreed by most scholars that the 1902 Act
was adopted to meet the Johnson decision
land. The litigation began when the State was adoted to meet the Johnson decision
of Georgia filed a complaint against parties and give some rights to "oystermen" so that
their beds would be protected. This is evi-
who were asserting ownership of the land Constitutional
dent from the 1943-1944 Constitutional
in question. The present appellees are suc-
Commission's discussion surrounding the
cessors to the earlier defending parties, and a doption of the 1945 constitutional provi-
appellees assert ownership rights in the sion ratifying the 1902 Act. There it wa s
land in question in opposition to the claims s
,of , t- stated that the constitutionality of the 1902
Act was in question and that the provisions
Whatever rights the individual parties to of the Act should be ratified by the Consti-
this case may have in the foreshore must be tution. In proposing such ratification, it
determined untler the 1902 Act. was stated, "The purpose [of the 1902 Actl
was to give somebody title to the oyster
III beds. At that time the oyster beds had
*THE EFFECT OF THE 1902 ACT been depleted, and the idea was if the pri-
vate property owner owned the oyster beds
(Ga.L.1902, p. 108; Code �� 85-1307, they could afford to replant them and pa-
85-1308, 85-1309) trol them and undertake to restore the oys-
Prior to the 1902 Act the title and ter industry to the State of Georgia." (Em-
ovnership of the foreshore was in the State phasis supplied.)
of Georgia. This was the common law and This history is important because it has .
the law in Georgia. It was stated by this bearing upon the proper interpretation of
court on February 3, 1902, in Johnson v.
State, 114 Ga. 790, 40 S.E. 807, a case in- the intention of the 1902 Act. Priw aria o
the purpose of the 1902 Act was to over-
volving an indictment for illegally taking come this court's decision in Johnson :ind to
oysters from an alleged private oyster bed.
give "oystermen" a property right in oyster
The oyster bed(l was located in tidal waters
beds, particularly oyster beds they had
between the high and low water marks.
� planted.
Johnson held that title to the tidal water
and underlying land was vested in the State Also, the facts and the statements (if this
of Georgia and was public land. Therefore, court in Johnson are iinmportanlt in ase:rtlain-
the defendant could not be convicted of ing the intention of the legislature in the
taking oysters from a private oyster bed 1902 Act and in interpreting the meaning of
which was located on public land. The deci- the language used. In Johnson the defend-
sion apparently discouraged "oystermen" ant contended and this court concluded that
because many oyster beds are located be- the tide-water between high and low water
tween the high and low water marks of marks and the underlying land was owned
tidal waters. Oyster beds are frequently by the State. In opposition to this tonten-
planted and cared for at substantial cost. tion the State argued that Code � 85-1303
However, under Johnson, the land between (then Civil Code � 3059) defining a naviga-

ble stream and Code � 85-1304 (then Civil its bosom at mean low tide, boats loaled
Code � 3060) defining the adjacent owner's with freight in the regu.ar course of trade.
rights in navigable streams applied to tide- The Atlantic Ocean can bear upon its bosomn
waters and the adjacent landowner's title freight boats and in fa.Lt does. Therefore,
extended to the low water mark. Code the tide-waters in the ins:tant case are clas-
� 85-1303 defines a navigable stream. sified as navigable wate-s under the defini-
Code � 85-1304 states, "Rights of owner of tion of'the 1902 Act. Tlle 1902 Act contenm-
lands adjacent to navigable streams. The plates only two categoies, non-navigable
rights of the owner of lands adjacent to and. navigable tide-watcts.
navigable streams extend to low-water EJHaving detelrmined tl;at the tide-waters
mark in the bed of the stream." Although in the insant case are avigable, what did
this court in Johnson held these code see- c- the 1902 At provide?
the 1902 Act l,rovide? S,'ction 1 of the 1902
tions referring to strcarms did not apply to Act need riot he considlcetd hele because it
tide-waters it is critical to read what the als wi landowners a
court said these code sections did provide gale tide-walers. Section 3 cf the Act
It is important because the 1902 Act waX'S dals titde landowners. Sc(acent te nAvi
adopted to overcome the Johnson decision. ble tide-waters. (Code � 85-1309).
In Johnson, this court said, "From all the
light before us, we think it most reasonable It provides, "For all purposes, including
to suppose that the intention of the law- among others the exclusive right to the
making power, as expi essed in sections 3059 oysters and clams (but not to include other
and 3060 of the Civil Code, [now Code fish) therein or thereon being, the bounda-
�� 85-1303 and 85-1804], was not to change ries and rights of owners of land adjacent
the common law wil.h reference to the to or covered in whole or in part by naviga.-
boundaries of landowners abutting on the ble tidew;aters, as defined in the preceding
sea or any of its inlets, hut, rather to insure section, [definition of navigable tide-watersl
to riparian proprietor. the right to the riv- 'shall extend to low-water mark in the bed
er-bottoms upon their lands for agricultural of the water: Provided, however, .. . .
purposes." (Emphasis supplied.) ' Section 3 does not give the adjacent land-
Thus, this court. said th at Code � 85--1304 owner title to anything. It grants "rights"
which provides, "rhe rigl ts of the owner of and nobthing more. The "rights" granted
lands adjacent'to navigable streams extend are similar rights this court said an adja-
to low-water mark in the bed of the cent landowner acquired in navigable fresh
stream " meant, ". . the rig'ht to the water streams under Code � 85-1303. In
river bottoms upon their lands for agricul- Johnson this court said the right acquired
tural purposes." (Emph:,sis supplied.) was "the right to the river-bottoms upon
their lands for agricultural purposes." Us-
To overcome the Johns.,n decision and its ing similar language in Section 8 of the
holdings, the legislature adopted the 1902 1902 Act, the legislature granted landown-
Act. What did the 190';, Act do? ers adjacent to navigable tide-waters cer-
The legislature distinguished between the tain rights. Paraphrasing Johnson, we
non-naviglable tide-waters and navigable think it reasonable to suppose that the in-
tide-waters. A definition stating what is tention of the lawmaking power was to
navigable is set out in Section 2 of the 1902 insure to riparian owners the right to the
Act (Code � 85-1308). Basically it is the tide-waters for all purposes relating to the
same definition contained in Code � 85- planting and cultivation of oysters and
1303 for fresh water. clams, and an exclusive right to harvest
those crops as well as oysters and clams
rthe tide-waters involved in the in- growing there naturally.
stant case are on the shores bordering the We note further that I he Code of 1)33
Atlantic Ocean. The Atlantic Ocean is a which has been enacted into law inserted
"stea."' S'lection 2 of tIe 1902 Act (Code the following caption to Section 3 of the
� 85-1.308) declares "a s('a" to be navigable 1902 Act: "Rights of owners of land adja-
tide-water provided it is used for purposes cent to navigable tide-waters." Apparently
of navigation or is capable of bearing upon both the codifiers and the legislature inter-

preted this section as dealing only with In our opinion the State has fee'
"rights." simple title to the foreshore in all navigable
We are not concerned here with Sec- tide-waters.
tion 1 of the 1902 Act (Code � 85-1307). Division 2 of Rauers v. Persons, 144 Ga.
That section deals with title to the beds of 23, 86 S.E. 244 (1915) cannot be accepted as
non-navigable tide-waters, The instant an authoritative construction of the 1902
case is concerned with rights in navigable Act. A review of the record in that case
tide-waters provided for in Section 3 of the shows that the application OC the 1902 Act
1902 Act. Section 1 of the 1902 Act has a in Division 2 was not challenged, was not
bearing on the instant case only because it considered by the trial court, and actually
speaks of "title to the beds." Whether this was not in issue in the case. Division 2
relates to the oyster beds, bottoms, or land appears to be an aberration because the
is not decided here. What is important is trial court's denial of an injunction was
that some sort of title is dealt with. In affirmed despite the holding in Division 2
Section 3 of the 1902 Act, which governs that an injunction should have been grant-
the instant case, no mention. is made of any ed. Division 2 is dicta, is unsound, and will
sort of title. Section 3 only refers to rights. not be followed.
Obviously the legislature in Section 3 was
granting something less than title. In our IV
opinion nothing but the right to plant, culti- ACCRETED LANI)
vate and harvest oysters and clams was
granted. Such a grant solved the problem (The "dry sand" area)
of the oystermen. They badl the exclusive "According to the better authori-
right to the oysters the oystern he tidal waters next ties, the bounding of a tract by the edge or
to their adjacent land. In our opinion it is margin of a road will pass the fee to the
a privilege or a license. See Acts 1968, p. middle line of the road when the vendor
202 (Code Ann. � 45 905.1) ct seq. providing owns the fee on loth sides. Upon the like
a uniform law relating to the zoning of reason, if lie owns the fee on one side only,
tidal waters and the taking of seafood and the whole road is upon the margin of
therefrom. his tract, the proprietor on the opposite side
not having any interest in its ownership, a
This conclusion comports with the conveyance of the tract as bounded by the
general principle that a public grant is con- margin of the road should, and we think
strued strictly against the grantee and would, pass the fee in the whole road."
nothing is taken by implication. McLeod v. Johnson & Co. v. Arnold, 91 Ga. 659, 667, 18
Burroughs, 9 Ga. 213, 221(3) (1851); S.E. 370, 372 (1893). Gradual accretions of
McLeod v. Savannah, A&GR Co., 25 Ga. land from navigable tide-waters accrue to
445, 457 (1858). the adjacent land owner. Therefore, the
The extension of boundaries referred to accreted land in dispute here accrued to the
in Section 3 (Code � 85-1309) does no more owners of the lots in the East End Subdivi-
than establish the extent of the rights. It sion bounded on the east by Beach Drive.
conveys rio title to the underlying land. Jones v. Turlington, 243 N,C. 681, 92 S.E.2d
See Johnson & Co. v. Arnold, 91 Ga. 659, 75 (1956). There are issues of fact remain-
668, 18 S.E. 370 (1893). ing to be resolved by the trial court as to
We note.that the rights granted by Sec- whether the accretedl land has been dedicat-
tion 3 of the 1902 Act are subject to certain ed to public use or become subjfect to pre-
provisions contained therein such as the res- scriptive rights.
ervation of other fish and the rights of : Judgment revesetcd.
public passage.

SECTION 5. PUBLIC ACCESS TO BEACHES

SEAWAY COMPANY V. ATTORNEY GENERAL,

Texas Court of Civil Appeals, 19!64

375 S.W. 2d 923

BEI.I., Chief Justice.

This case involves the question as to Criminal District Attorney were given
whether the people of Texas have an ease- authority to bring suits on behalf of the
ment on, over, along and across a portion of people of Texas, and it was made their duty
the beach along the Gulf of Mexico on to do so, to require removal of any obstruc-
Galveston Island giving them access to the tions that may interfere with such right of
State-owned seashore and waters of the ingress and egress.
Gulf. The casement asserted in appellees'
petition, found by the jury's verdict, and While the above is not all of t, it
established by the court's judgment based is all that need be noticed at this time.
on the jury verdict, encompassed an ease- Pursuant to the authority conferred and
ment in the public to use the area of the the duty enjoined the then Attorney General
land adjoining then waters of the Gulf of of Texas. the Ionorable Will Wilson, and
Mexico from the line of mean low tide to the Criminal District Attorney of Galveston
the seaward side of the line of vegetation County, the Honorable Jules Damiani, filed
for travel and camping and to make use of suit against appellalt, asserting it hal
* the area sothe members of the public co~uld owned, controlled and was maintaining bar-
fully pursue their rights to swim, fish and riers from the line of vegetation seaward
boat in and on the Gulf waters. beyond the line of mean high tide at three
The 56th Legislature of Texas at its defined positions, two being 1on projections
Second Called Session of 1959, enacted of specified lot lines of the West Beach
what is popularly known as the "Open Addition and one being a projection of the
Beaches Bill." Acts 56th Legislature of east line of Sea Island Addition. Both
Texas 1959, 2nd Called Session, Chapter 19, additions are in Section 12 of the Jones &
p. 108. This Act is carried in Vernon's Iall Grant in Galveston County. Prayer
Annotated Civil Statutes as Article 54155d was that appcllant be required to remlove
and will hereafter be referred to in this the barriers and be enjoined from erecting
opinion as Article 5415d. This Articlc, others seaward of the seaward side of the
among other things, declared it to be the vegetation line which would interfere with
public policy of this State that the people of the use by the public of the area seaward of
the State should have the free and un- the line of vegetation.
restricted right of ingress and egress to and
Tle petitionl asserted that al~lpellhmnt wlas
from the State-owned beaches bordering on
the seaward shore of the Gulf of Mexico or claming of the surface of the
area where the barriers were located, lIut
such larger area extending from the line area whe the riers w ere ocated,
of mean low tide to the line of vegetation i th at what vec right s it r su
ordinate and subljct to the right of use of
the evecnt tihe pucblic has acquired a ritlrh
tile people as a means of access to and the
of use or easement to or over such area by of th
full use and enjoyment of the sovcreign-
prescription, dedication, or has retained a of
owned shore anid WatelS of tilhe Gulf .f,
right ,by virtue of continued right in tihe t
public. The Article made it an offense exico for swimming, fing, oatil,
caganpimig an[ :cs a Ipblic way for vehicular
against such public policy for anyone to and pedestrian travele City of
obstruct the way of ingress and egress or Galveston an the let end of Galvston
(;arlveston and the wvcst cell of (;:tlvcstoll
the use of the beaches. The Attorney Island
Gecneral of Texas, a County, District, or - .

The effect of appellees' petition is ti State-owned seashore and waters, but the
assert an casement in the public covcring plain language of the grant shows the Re-
thc area between mean high tide and the plpublic of Texas did not do so. We may not
seaward side of the vegetation line based on imply such a reservation in the face of the
dedication, prescription and conltiluous language of the grant evenl though there is
right ill the public. , evidence that there was a road down the
beach at the time of the gr:ant. The grant as
The appcllanlt's answer containedl, inl adl
tmade by the sovereign must be upheld just
dition to pleas in abatement and exceptionye
dition to pleas in abatement and exceptio the same as if it were a controversy betweenll
,rot litre necessary to notice, a rellcl-ill
notwo persons. The sovereign mulst fully
denial, special denials, and affirmative
denial, special denials, ad affirmativ honor its xalid conveyances and contracts.
claims that title to the land on which the
barriers were located had passed out of the
State over 100 years ago and the barriers We dod not kntlow that we clearly
were on land belonging to it, and it also rogmprentld tbe appellees' position that the
pled the 3, 5, 10 and 25 year statutes of judgment can ie upheld on the theory that
lim[itation. the use of the beach by the public has bc-
come a part of our tradition and common
The court's charge defined the "beach" as law and the easement exists by reason of
the "area extending from the line of mean continuous right in the public. \We suppose
low tide to the line of vegetation bordering they seek to have us hold that the seashore
on the Gulf of Mexico." It defined the is held in trust by the sovereign at common
"Line of vegetation" as "the extreme sea- law for the people andl to enjoy it there must
ward boundary of natural vegetation which be a means of egress and ingress to enable
spreads continuously inland." This is es- them to enjoy such use and therefore the
sentially the definition given in Article sovereign has no power to cut off convenient
access. We know of no such rule of law.
Iii our extensive research we have found no
One theory of recovery of the cases so holling nor have any been cited us.
easmillnt by the appellees, and which is one In some cases the expression is used that
basis of the court's judgment, is that tradi- the sovereign holds the seashore for use by
tionally the sovereign has held the seashore the members of the public. We think this is
as trustee for the use of the people and any true but this is far from holding that grants
conveyance made by the State would bIe by the sovereign of land above the seashore
subject to the right of the people to use the are impressed by implication with a reserved
seashore and this includes the right of in- easement inl favor of the public to furnish
gress and egress. Too, it was found by the access by land to the shore. Nor is there in
jury, an(l such finding is supported by such cases such holding of the want of
sufficient evidence, that the Republic of power in the sovereign to pass a eie sinlple
Texas, prior to and at the time of the grant, title to the upland above the lint of mean
had dedicated the beach for use by the high tide.
pulblic. ITowever, even if this be true the
Republic of Texas at the time of the grant lhe appellant takes the position that
wa~s, as sovereign, owner of thIe beach and since their predecessors whose interest they
as such owner had authority to convey fee own obtained fee sinlple title, Article 5415d
simlple title. Mayor, etc., of City of Galves- is unconstitutional. It says the Article
toir v. Menard, 23 Tex. 349. TIhere was no violates the Texas and United States Con-
law with which we are familiar which re- stitutions because it violates the obligations
stricted the power of the President of the of a contract, seeks to take private property
Republic who signed the patent to convey for public purposes without just compenlsa-
fee simple title to the line of mean high tide. tion and deprives it.of property without due
In addition to the patent, there was the con- process of law. Too, it says the Act denics
firmlatol-y Ate wlich confirmed title in the- it equal protection of the laws and acts
patentee alld its successors ill titl'. Act of retroactively to deny it established defenses.
I'el,'ruary S, 185-I, IV Gaimnrell's Laws of We take it the last two assertions are aimed
Texas, pp. 1)25-126. It would no doubt have at Section 2 of the Act that creates a prilma
been good policy for the Republic to have facie preslmption that where property is
reserved the right of ing-ress and egress so shown to be between the line of vegetation
lhe people could more effectively enjoy the and mean low tidtle the title of the littor.al

owners does not include the right',of the We hold that under all the evidence an
owner to exclude the public from using the implied common law dedication by appel-
area for access to the sea and "there has lant's predecessors in title is shown of
been imposed upon the area subject to proof the area seaward from the seaward side
of casement a prescriptive right or easement 'of the line of vegetation to the line of
in favor of the public for ingress and egress mean high tide.
to the sea."
It is well established in this
We find it unnecessary to pass State that there may be a dedication of
on the a.sertions of unconstitutionality be- land to public use. Implied dedication
cause in this case the appcllees have resort- . need not be shown by deed nor need
ed to the statute only insofar as it places in public use be shown for any particular
them the authority to bring the suit on be- length of time. It is sufficient if the rec-
half of the people and insofar as it defines ord shows unequivocal acts or declarations
the terms "beach" and "line of vegetation" of the land owner, dedicating the same
as above stated. There has been no reliance to public use, and where others act on
on the prima facie presumption created by the faith of such dedication, the land owner
the Act. Apart from the presumption we will be estopped to deny the dedication,
think the only effect of the Act is to declare or make any future use of the property
it to be the policy of the State that the public inconsistent with any purpose for which
shall have the unrestricted right of ingress the land was dedicated. It is of course
and egress to the State-owned beaches or necessary that there should be an appro-
such larger area extending from the line of priation of the land by the owner to pub-
mean low tide to the seaward side of the line lie, use. By this last statement is meant
of vegetation as defined in the Act in the the land owner lust be shown to intend
event the public has acquired an easement by to dedicate the land to public us&' TnI
dedication, prescription or has retained a the. case of implied dedication this intent
right by virtue or continuous right in the is not, or at least need not be, manifested
public. There is nothing in the Act which by an expression to that effect, but may be
seeks to take rights from an owner of land. manifested, and usually is, by some act
Apart from the presumption, it merely fur- or course of conduct. Oswald v. Grenet,
nishes a means by which the members of the 22 Tex. 94; Owens v. IHockett, 151 Tex.
public may enforce such collective rights as 503, 251 S.W.2d 957 (S.Ct.); Dunn v.
they may have legally acquired by reason of Deussen, 268 S.W.2d 266 (C.C.A.), ref.,
dedication, prescription or which they may n. r. c.; O'Connor v. Gragg, 161 Tex.
have retained by continuous right. It makes 273, 339 S.W.2d 878 (S.Ct.); Comptol
persons in appellees' positions representa- v. Waco Bridge Co., 62 Tex. 715; Chanm-
tives' for the people to bring suit. In the hers County v. Frost, 356 S.W.2d 470 (C.
case of State v. Markle et al, 363 S.W.2d C.A.), ref., n. r. e. The intent on the
332, (C.C.A.) we, on cursory examination of part of the owner, however, is not a
the Act, stated the above in substance. A secret intent, but is that expressed by
further examnination of the Act leaves us visible conduct and open acts of the owner.
with the same view. Even if Section 2 be If the open and Iknown acts arc of such
invalid, a matter on which we express no a nature as to induce the bclief that the
opinion, it would not affect the balance of owncr inten(led to dedicate the vay to the
the Act. public and individuals act on such colrdlet,
proceed as if there had been in fact a
In this case the State'also seeks to uphold dedication and acquire rights that would
the judgment on a basis of. dedication by he lost if .the owner were allowed to
appellant's predecessors in title, prescription reclaim the land, then the law will not
and estoppel, estoppel being based on theim to assert that there was
act of the owners in allowing expenditurcs
intent to dedicate, no matter what reay
of public funllds ilnl maintenance of the beach. have been his secret intent
have been his secret intent. TIle act
of throwing open property to the public
We are of the view.that the jury's
finding that the beach had been dedicated by use, without any other formality, is suf-
appellant's predecessors in title is supported ficient to establish the fact of dedication
by sufficient evidence. . . to the public; and if individuals, in con-

"sequence of this act, become interested have known of it, and it is the duty and
to have it continue so, tile owner cannot right of officers to patrol only public roatds
resume it. Owens v. HIockett, supra. ill the enforcement of the law. In this
connection, it is interesting to note that
The evidence we have detailed in the case of Brown v. State, 163 Tex.
shows the owners, beginning with the orig- Cr.R. 170, 289 S.W.2d 942, our Court of
inal ones, have thrown open the beach to � Criminal Appeals, on much less evidence,
public use and it has remained open for found West Beach to be a public road.
over a hundred years. There is absolutely This maintenance and patrolling is some
no evidence of closing it to public use until evidence of intent to dedicate. Chmllmbers
the erection of the barriers complained of County v. Frost, 356 S.W.2d 470 (C.C.A.),'
in this case. They were erected in 1958. ref., n. r. e.
There is the evidence of one fence, which
'3 Appellant urges that tie owner's
we spoke of above, that was there froom
also used the beach. This alone is not
about 1911 to 1915, down the beach sonics not
distance from appellant's property. Itow- fatal to a finding on implied dedication.
ever, it had an unlocked gate permitting O'Connor v. Gragg, supra. It would seem
passage by users. While the exact loca- to us this would be but evideutiary an-d
tion of the fences lateral to the beach is tlowneight to be given such use by the
shrouded in some uncertainty, it seems owner would depend on its nature, ectent
clear that they are up above the seaward and all surrounding circumstances. The
side of the line of vegetation at Section use by owners shown is small as compared
12 most of the time. Appellant's explana- to use made by the pnblic without per-
tion of this is they were there to prevent mission from the owners. Too, the medm-
destruction from high waters. This is a hers of the public were not confined to
possible and likely explanation. However, residents of the cmmunity. d-outing
if the various prior owners did not intend shown to hav e was all the IBy
to dedicate the beach, they could easily side, not on the Gulf side. When their
]have donle as has been done in the crectioln cattle were let out so they could get away
of the present barriers. They could have fron mosquitoes, they were not confined
erected barriers of such construction thatnd because there
at most they would have been damaged were no fences to confine them within the
or destroyed by storms and then repaired limits of their owner's lands, but they could
or replaced at relatively small expense. wander atwill up and down the beach
Such would have been- evidence of the on others' lands. It was like turning them
absence of intent to dedicate. Or, as out on a "Common". Too, the owners,
has been true in some decdeed cases, they when they used their part of the beach to
could have erected signs showing use bty drive cattle, were using i[ as only a link
could have erected signs showing ise by
the public was purely permissive. Ratlr her
than any such conduct, however, successive of Galveston. They cold l)e said to be
owners have without any protest, allowed using it, not in exercise of a right of
meml)crs of the public generally to ause ownership, but as a member of the public.
the beach each year. While it is true For there to be a dedication there must
there were few who used it during the be acceptance by the public. The evidence
winter months, the thing of significance above detailed shows acceptance by the
is that whoever wanted to use' it did so public. Compton v. Waco Bridge Co.,
continuously for these many years when supra; City of Tyler v. Smith Coutty,
they wished to do so without asking per- 151 Tex. 80, 246 S.W.2d 601 ($.Ct.).
mission and without protest from the land llal ' h c b ;'no
Appelhtlat urges there can be no
owners. Too, the County expended funds
dedicartion beearise there has been no ac-
on the beaches, including West Beach, bn
from 1.929 to the erection of the barriers,
keeping debris cleared so the beach couldl y Article 662G, V.A.T.S. I
be used by the public. It was so open Article 6626 applies to express dedication
the owners must have known of it. Too, only. It has been held {agt for there to
the patrolling of the beach by'law enforce- ' be all implied dedication acceptance by pub-
ment officers was carried on openly and lie authority is n0't necessary. User by the
for such length of time the owners shold pu blic generally suffices.

We are also of the view that the under a claim of right in themselves. In
jury's finding of all easement by prescrip- the cited. cases and others relied on by
tion finds evidence to support it and such appellant, and others we have read, the
evidence is sufficient. land on which the easement was claimed
lay wholly within the owner's boundarics.
Aln casement by prescription may Here appcllant's property is but a small
be create~d by iiscr. Such user must be link in a road used by the public generalry.
adverse to the owner, must be continuous It was not a strip by itself forming the
and must be for at least 10 years. Ex- entire road traveled from the claimant's
pressed otherwise, the user must be under property solely across appellant's property
a claim of right in the users and not a ito reach a public road. It was -but one
permissive use under the owner and must link in a way also used across other per-
continue for the requisite period of time. sons' lands to go to and fro from the 13
We think the above facts clearly show Mile Road and in many instances on to
contilluouts user for the purposes above .the City of Galveston and San Luis. It
discussed for far more than the 10 year could under such circumstances be said
period required. the owner's use was not in his right as
owner but as a member of the public. Use
Appellant, while contending there
w.ie c id therefor a road has been going onl, as shown
was not even sufficient user, particularly
wasnontvsuffici endsth user,* adversby the evidence, ever since before the
contends the user was not adverse be-
cause the owner used the property at the le of the patt. The use by appllant's
same time it was being used teby mpmerts predecessors in title in turning their cattle
same time it was being sed by members out on the beach is of the same character
-of the public. As we understand the law,
as use of the road. It can reasonably be
use by the owners and others at the same
said, under the facts of this case, they
time raises the presumption that user 'by
were turned out into a commons and use
others is permissive only but there may n ts fason by te owner was not
in this fashion lby the owner was not in
be present in a given case sufficient evi- assertion of rights of ownership, hut in
-� dce to show user by the others under a
assertion of a righlt as a member of the
,claim of right. Mere joint use is not de- stilolic to use the beach.Wh the
terminative. If the nature of the use is
were on the beach they were not confined
suchl as to show to the owner that the
to the owner's land but could roam at
users are claiming under a right independcl will tp and down the beach. Further i
ent of any permission from him, there is
t o this case the persons who used the beach
the requisite adverseness. The jury founld were not merely neighbors of the owners,
there was not permissive use. Chambers
nor were they merely persons in the com-
County v. Frost, supra; Bowler v. Mat-
thews, 204 S.W.2d 80 (C.C.A.), no writ on by appellant As shown by the cvi-
hist. In this connection we will not notice
<eunce, the persons who have used the beach
all cases cited by appellant, but we do from the beginning have been residents of
note two Supreme Court decisions. O'Con- Galvcton and elsewhere in the State.
nor v. Gragg, supra, and Othen v. Rosier, Many witnesses who testified were fron
I 148 Tex. 485, 226 S.W.2d 622. In these Houston. Thousands of people were shows
cases the Court held that tinder all facts
to have used the beach, not only for a
there was not shown to be an adverse use
drive but for camllping and in conncctio.
and one of those facts was joint use by with fishing, boating and swiyming. Evi-
the owner and his neighbors in the coin- denc shows they used it at will withou
munity of a strip of the owner's land lying asking permission and there is no evidence
wholly within the boundaries of his owner- of any objection by owners. By public
ship. As stated by the Court in the O'Con- laws routes for travel along the beach
nor v. Gragg case there was there no were, as above s1ow0, established. Too,
-evidence tentling to show a claim of right public advertising showed the availabili
public advertising showed the availatbility
by Gragg or the public to use tJc road
of the beach to the public. In addition,
to the exclusion of the owner. This state- patrol of the beach by law enforcemeti
mpntrol of the ]onach by, law snforctatthe
ment leads us to the conclusion that the officers is shown. Further, whatever main-
mere joint use is not destructive of a tenance of the beach has been necessary
conclusion of adverseness if there are other since 1929, has been done by employees
facts prcscl.t to show use by others IS of Galveston County and public funds havT-

been expended for the purpose. All of tide and the line of vegetation, two of
these facts, we think sufficient to show nature's monuments, effectively mark the
the adverse nature of the use by the pub- route used.
lic.
Appellant also contends the l(;llch
Appellant also asserts in effect the evi- has changed and there has been erosion
dence does not show what part of the so different land has been used from lilme
beach was used and to establish an ease- to time. There is evidence to that (If'cct.
ment by prescription the same route, in There is sufficient evidence to the con-
case of a road, must be used. We think trary to support the jury's finding 'of no
the evidence shows, as we have above de- net erosion and the beach is the same as
tailed, the whole of the beach from the ever. Too, though under appellant's evi-
linc of mean low tide to the sand dunes dence the beach is narrower, we think the
has been usedl fol* actual travel and in evidence clearly shows the line of vegta-
between the dhines to the'vegetation line tion has remained the same fur at heast
has been used in connection with travel 200 years. Experts testified the beach and
such as for parking vehicles and for camp- the line of vegetation are stable ones.
ing and in connection with fishing an(l
swimming done by those who traveled.
As above noticed, this has not been a
desultory use as is the case in those cases We aflirm the judgment of the trial
relied on by appellant. It has not been court on the groulnd that an casement has
a use across an open prairie where one becn established as found by the jury, by
travels helter-skelter. Nor has it been dedication by appellant's predecessors in
travel where for son.e time one travels title and prescription.
on a given route and later travels another
route distantly removed from the first route.
The physical nature of the beach and the
use made definitely define the route. The
line of vegetation and the line of low
tide mark the route. Since the high tides
are daily throughout the year, it means
that anyone 'making use of the beach at
high tide must use that part near the
vegetation line. Evidence shows daily
systematic use of the whole area. This
requirement of a definite route is required
so the owner may have notice of not only
the fact of adverse claim but the extent
of it. The nature of the terrain and the
use made gave sufficient notice to the owner
of the extent and location of the route
claimed. The case of Hlall v. City of
Austin, 20 Tex.Civ.App. 59, 48 S.W. 53
(C.C.A.), certified on other points, 93 Tex.
591, 57 S.W. 563, is very much in point.
There the pass through the hills defined
the route. Here the line of mean low

GION V. CITY OF SANTA CRUZ

DIETZ V. KING

Supreme Court of California, 1970

2 C. 3d 29; 84 Cal. Rptr. 162, 465 P2d 50

PER CURIAM.
We consider these two cases together be- used as a road, to G. L1. Normand, the
cause both raise the question of determin- owner and developer of the surrounding
ing when an implied dedication of land has property. The'area presently under dis-
been made. pute, therefore, includes an old roadbed.
Gion v. City of Santa Cruz concerns Most of the area, however, has never been
three parcels of land on the southern or used for anything but the pleasure of the
seaward side of West Cliff 1)rive, between public.
Woodrow and Columbia Streets in Santa Since at least 1900 various members of
Cruz. The three lots contain a shoreline the public have parked vehicles on the level
of approximately 480 feet and extend from area, and proceeded toward the sea to fish,
the road into the sea a distance varying swim, picnic, and view the ocean. Such
from approximately 70 feet to approxi- activities have proceeded withonut ally sig-
mately 160 feet. Two of the three lots are nificant objection by the fee owners of the
contiguous; the third is separated from property. M. P. Bettencourt, who acquired
the first two by approximately 50 feet. most of the property in dispute in 1941 and
Each lot has some area adjoining and level sold it to Gion in 1958' and 1061, testified
with the road (30 to 40 feet above the sea that during his 20 years of ownership he
level) on which vehicles have parked for had occasionally posted signs that the
the last 60 years. This parking area ex- property was privately owned. He concedl-
tends as far as 60 feet from the road on ed, however, that the signs quickly blew
one parcel, but on all three parcels there is away or were torn down, that he never
a sharp cliff-like drop beyond the level told anyone to leave the property, and that
area onto a shelf area and then another he always granted permission on the few
drop into the sea. The land is subject to occasions when visitors requested permis-
continuons, severe erosion. Two roads sion to go on it. In 1957 he asked a neigh-
previously built by the city have been slow- bor to refrain from dumping refuse on the
ly eroded by the sea. To prevent future land.t The persons who owned thd land
erosion the city has filled in small amounts prior to Bettencourt paid even less atten-
of the land and placed supporting riprap in tion to it than did Bettenceurt. Every wit-
weak areas. The city also put an emergen- ness who testified about the use of the
cy alarm system on the land and in the -- land before 1941 'stated that the public
early 1960's paved the parking area. No Went upon the land freely without any
other permanent structures have ever been thought as to whether it was public or pri-
built on this land. vately owned. In fact, counsel for Gioli
Since 1880, the City of Santa Cruz has offered to stipulate at trial that since 1900
had fee title to a road at some location the public has fished on the property and
near the present road. Also since 1880, that no one ever asked or told anyone to
there has been an area south or seaward of leave it.
the road area that has been in private The. City of Santa Cruz has taken a
hands. As the area south'of the road growing interest in this'property over the
eroded, the city moved its road a short dis- years and has acted to facilitate the pub-
tance to the north. In 1932, after moving lic's use of the land. In the early 1900's,
the road to its present location, the city for instance, the Santa Cruz school system
gave a quitclaim deed for the land pre- sent all the grammar and high school stu-
viously covered by the road, but no longer dents to this area to plant ice plant, to

beautify the area and keep it from eroding. "Plaintiffs and plaintiffs' predecessors in
In the 1929's, the city posted signs to warn title had full knowledge of the dominion
fishermen of the dangers from eroding and control exercised over said property by
cliffs. In the 1940's the city filled in holes the City of Santa Cruz, and of the pittlic
and built an embankment on the top level user of said property throughout the period
area to prevent cars from driving into the of said public user, for a period of time in
sea. At that time, the city also installed an excess of five (5) years preceding the
emergency alarm system that connected a commencement of this action."
switch near the cliff to an alarm in the In Dietz v. King, plaintiffs, as represent-
firehouse and police station. The city re- atives of the public, asked the court to en-
placeed a washed out guardrail and oiled i join defendants from interfering with the
the parking area in the 1950's, and in
public's use of Navarro Beach in Mendoci-
1960-61 the city spent $500,000 to prevent no County an n unimproved dirt road,
erosion in the general area. On the specif- called the Navarro Beach Road, leading to
ic property now in dispute, the city filled that beach. The beach is a small sandy pe-
in collapsing tunnels antd placed boulders in ninsula jutting into the Pacific Ocean. It
weak areas to counter the eroding action is surrotmded by cliffs at the south and
of the waves. In 1963, the city paved all east, and is botlled by the Navarro River
of the,level area on the property; and in and the Navarro Beach Road (the only
recent 3ears the sanitation department has convenient access to the beach by land) on
maintained trash recepticles thereon andl the north The Navarro Beach Road
cleaned it after weekends of heavy use. branches.from a county road that parallels
The superior court for the county of State Highway One. The road runs in a
Santa Cruz concluded that the Gions were southwesterly direction along the Navarro
the fee owners of the property in dispute River for 1,500 feet and then turns for the
hut that their fee title was "subject to an final 1,500 feet due south to the beach.
easement in defendant, City of Santa Cruz, The road first crosses for a short distance
a' Municipal corporation, for itself and on land owned by the Carlyles, who maintain a
behalf of the public, in, on, over and across residence adjacent to the road. It then
said property for public recreation pur- crosses land owned by Mae Crider and Jack
poses, and uses incidental thereto, includ- W. Sparkman, proprietors of an ancient
ing, but not limited to, parking, fishing, structure called the Navarro-by-the-Sea
picnicking, general viewing, public protec- Hotel, and, for the final 2,200 feet, land
tion and policing, and erosion control, but now owned by defendants.
not including the' right of the City or the The public has used the beach and the
public to build any permanent structures road for at least 100 years. Five cottages
thereon." This conclusion was based on were built on the high ground of the ocean
the following findings of fact: 'beach about 100 years ago. A small ceme-
"The public, without having asked or re- tery plot containing the remains of ship-
ceived permission, has made continuous wrecked sailors and natives of the area ex-
and uninterrupted use of the said property isted there. Elderly witnesses testified
for a period of time in excess of five (5) that persons traveled overlthe road during
years preceding the commencement of this the closing years of the last century. They
action, for public recreation purposes. came in substantial numbers to camp, pic-
"Thte City of Santa Cruz, through its nic, collect and cut driftwood for fuel, and
agents and employees, has continuously for fish for abalone, crabs, and fimled fish.
a period in excess, of five (5) years pre- Others came to the beach to decorate the
ceding the commencement of this action, graves, which had wooden crosses upon
exercised continuous and uninterrupted do- them. Indians, in groups of 50 to 75 came
minion and control over the said property, from as far away as Ukiah during the
by performing thereon, grading and paving summer months. They camped on the
work, clean-up work, erosion control work, beach for weeks at a time, drying kelp atl
and by maintaining a planting program, catching and drying abalone and other
and by placing and maintaining safety de- fish. In decreasing numbers they contin-
vices.and barriers for the protection of the to Use the road and the beach until
about 1950.
ptublic using said property.

In more recent years the public use of block the road. That operation was
Navarro Beach has expanded. The trial stopped by the issuance of a temporary re-
court found on substantial evidence that straining order.
"For many years members of the public The various owners of the Navarro-by-
have used and enjoyed the said beach for the-Sea property have at times placed an
various kinds of recreational activities, in- unlocked chain across the Navarro Beach
cluding picnicking, hiking, swimming, fish- Road on that property. One witness said
ing, skin diving, camping, driftwood col- she saw a chain between 1911 and 1420.
lecting, firewood collecting, and related ac- Another witness said the chain was put tip
tivities." At times as many as 100 persons to discourage cows from straying and eat-
have been on the beach. They have come ing poisonous weeds. The chain was occa-
in automobiles, trucks, campers, and trail- sionally hooked to an upright spike, but
ers. The beach has been used for commer- was never locked in place and could be
cial fishing, and during good weather a easily removed. Its purpose apparently
school for retarded children has brought _ was to restrict cows, not people, from the
its students to the beach once every week beach. In fact, the chain was almost al-
or two. ways unhooked and lying on the ground.
None of the previous owners of the
From about 1949 on, a proprietor of the
King property ever objected to public use From about 1949 on, a proprietor of the
of Navarro Beach Road. The land was Navarro-by-the-Sea Hotel
originally owned by a succession of lumber sign at the posts saying, "Private Road-
and railroad companies, which did not in- Admission 50s-please pay at hotel." With
terfere with the public's free use of the moderate success, the proprietor collected
road and beach. The Southern Pacific tolls for a relatively short period of time.
Land Company sold the land in 1942 to Some years later another proprietor re-
Mr. and Mrs. Oscar J. Haub who in turn sumed the practice. Most persons ignored
Mr. and Mrs. Oscar J. Haub who in turn the sign, however, and went to the beach
sold it the the Kings in 1959. Mrs. Haub the sign, however, and went to the beach
testified by deposition that she and her without paying. The hotel operators never
husband encouraged the public to use the applied any sanctions to those who declined
beach. "We intended," she said, "that the to p ay. In a recorded instrument the
public would go through and enjoy that present owners of the Navarro-by-the-Sea
beach without any charge and just for the property acknowledged that "for over one
fun of being out there." She also said hundred years there has existed a public
that it "was a free'beach for anyone to go easement and right of way" in the road as
down there," "you could go in and out as it crosses their property. The Carlyles and
the previous owners of the first stretch of
you pleased," and "[wle intended that the
the Navarro Beach Road never objected to
beach be free for anybody to go down
its use over their property and do not now
there and have a good time." Only during
World War II, when the U.S. Coast Guard object.
took over the beach as a base from which The Mendocino county superior court
to patrol the coast, was the public barred ruled in favor of defendants, concluding
from the beach. that there had been no dedication of the
In 1960, a year after the Kings acquired be or the road and in particular that
the land, they placed a large timber across widspread public use does not lead to an
the road at the entrance to their lald. implied dedication.
Within two hours it was removed by per- In our most recent discussion of
sons wishing to use the beach. Mr. King conmon-law dedication, Union Transp. Co.
occasionally put up No Trespassing signs, v. Sacramento County (1954) 42 ,Cal.2d
but they were always removed by the time 235, 240-241, 267 P.2d 10, we noted that a
he returned to the land, and the public con- common-law dedication of property to the
tinued to use the beach until August 1966. public can be proved either by showing ac-
During that month, Mr. King had another quiescence of the owner in use of the land
large log placed across the road at the en- under circumstances that negate the idea
trance to his property. That barrier was, that the use is under a license or by estab-
however, also quickly removed. He then lishing open and continuous use by the
sent in a caterpillar crew to permanently public for the prescriptive period. When

dedication by acquiescence fur a period of son acted as if he actually claimed a per-
less than five years is claimed, the owner's sonal legal right in the property.
actual consent to the dedication must be (O'Banion v. Borba (1948) 32 Cal.2d 145,
proved. The owner's intent is the crucial 148, 151, 195 P.2d 10.) Such a.personal
factor. (42 Cal.2d at p. 241, 267 P.2d 10, claim of right need not be shown to estab-
quoting from Schwerdtle v. County of Pla- lish a dedication because it is a public right
cer (1895) 108 Cal. 589, 593, 41 P. 448.) that is being claimed. What must be
When, on the other hand, a litigant seeks shown is that persons used the property be-
to prove dedication by adverse tuse, the in- lieving the public had a right to such use.
quiry shifts from the intent and activities This public use may not be "adverse" to
of the owner to those of the public. The the interests of the owner in the sense that
question then is whether the public has the word is used in adverse possession cas-
used the land "for a period of more than es. If a trial court finds that the public
five years with full knowledge of the own- has used land without objection or inter-
er, without asking or receiving permission ference for more than five years, it need
to do so and without objection being made not make a separate finding of "adversity"
by any one." (42 Cal.2d at p. 240, 267 P. to support a decision of implied dedication.
2d at p. 13, quoting from Hare v. Craig
(1929) 206 Cal. 753, 757, 276 P. 336.) As Litigants, therefore, seeking to
(1929) 206 al. 753, 757,276 336.) As show that land has been dedicated to the
other cases have stated, the question is
other ases l have stated, the question is public need only produce evidence that per-
whether the public has engaged in "long-
sons have used the land as they would
continued adverse use" of the land suffi- have used plic land. If the land in-
cient to raise the "conclusive and untdisput- voved is a beach or shoreline area, the
volved is a beach or shoreline area, they
able presumption of knowledge and acqui- should show that the land was used as if it
escence, while at the same time it negatives If a road is
tlhe idea of a mere license." (42 Cal.2d at li t
p. 241, 67 P.2d at p 13, quoting from involved, the litigatlts must show that it
was used as if it were a public road. Evi-
Schwerdtle v. County of Placer, supra, 108 dence that the users looked to a govern-
Cdnce that the users looked to a govern-
Cal. 589, 593, 41 P. 448.) mental agency for maintenance of the land
In both cases at issue here, the litigants is significant in establishing an implied
representing the public contend that the dedication to the public. (Washington
second test has been met. Although there Boulevard Beach Co. v. City of Los Ange-
is evidence in both cases from which it les (1940) 38 Cal.App.2d 135, 137-138, 100
might be inferred that owners preceding P.2d 828; Seaway Company v. Attorney
the present fee owners acquiesced in the General (Tex.Civ.App.1964) 375 S.W.2d
public use of the land, that argument has 923, 936-937.)
not been pressed before this court. We
therefore turn to the issue of dedication by Litigants seeking to establish dedi-
adverse use. cation to the public must also show that
various groups of persons have used the
-Three problems of interpretation aiave land. If only a limited and definable num-
concerned the lower courts with respect to ber of persons have used the land, those
proof of dedication by adverse use: (1) persons may be able to claim a personal
When is a public use deemed to be ad- easement but not dedication to the public.
verse? (2) Must a litigant representing An owner may well tolerate use by some
the public prove that the owner did not persons but object vigorously, to use by
grant a license to the public? (3) Is there others. If the fee owner proves that use
any difference between dedication of shore- of the land fluctuated seasonally, on the
line property'and other property? other hand, such a showing does not ne-
In determining the adverse use gate evidence of adverse user. "[TJhe
ne.. ssary to raise a conclusive presumption thing of significance is that whoever want-
e' ..edication, analogies from the law of cd to use [the land] did s * * * when
adverse possession and easement by pre- they wished to do so without asking per-
scriptive rights can be misleading. An ad- mission and without protest front the land
verse possessor or a person gaining a per- owners." (Seaway Company v. Attorney
sonal easement by prescription is acting to General (Tex.Civ.App., supra), 375 S.W.2d
gain a property right in himself and the 923, 936.)
test in those situations is whether the per,

The second problem that has concerned stances -and the inferences that may be
lower courts is whether there is a pre- drawn therefrom. The use may be such
sumption that use by the public is under a that the trier of fact is julstified in infer-
license by the fee owner, a presumption ring an adverse claim and user and imput-
that must be overcome by the public with ing constructive knowledge thereof to the
evidence to the contrary. (Compare Roch- owner. There seems to be no apparent
ex & Rochex, Inc. v. Southern Pac. Co. reason for discussing the matter from the
(1932) 128 Cal.App. 474, 479, 17 P.2d 794, standpoint of presumptions." (32 Cal.2d at
to People v. Sayig (1951) 101 Cal.App.2d pp. 148-149, 195 P.2d at pp. 12-13.)
890, 897, 226 P.2d 702.) Counsel for the
- No reason appears for distin-
fee owners have argued that the following
language from F. A. Hihn Co. v. City of guishing oroof of implied dedication by in-
Santa Cruz (1915) 170 Cal. 436, 448, 150 voking a presumption of pernlissive use.
1'. 62, 68 is controlling: The question whether public use of pri-
vately owned lands is under a license of
"* * * where land is uninclosed and the owner is ordinarily one of fact. We
'uncultivated, the fact that the public has will not presume that owners of prdperty
been in the hatbit of going upon the land today kno permit the general public
today knowingly permit the general public
will ordinarily be attributed to a license on to use their lands and grant a license to
the part of the owner, rather than to his tho public to do so.r a fee owner, to
intent to dedicate. (13 Cyc. 484.) This is negate a finding of intent to dedicate based
more particularly true where the user by on uninterrupted public use for more than
the public is not over a definite and speci-
fied line, but extends over the entire sur- firmatively prove that he has granted the
face of the tract. (13 nye. 484.) It will
face of the tract. ('13 Cyc. 484.) It will public a license to use his property or dem-
not be presumed, from mere failure to d1- onstrate that he has made a bona fide at-
ject, that the owner of such land so used tempt to prevent public use. Whether an
intends to create in the public a right owner's efforts to halt public use are ade-
which would practically destroy his own quate in a particular case will turn on the
right to use any part of the property."2 means the owner uses in relation to the
We rejected that view, however, in character of the property and the extent of
O'Banion v. Borba, supra, 32 Cal.2d 145, public use. Although "No Trespassing"
195 P.2d 10. With regard to the question signs may be sufficient when only an occa-
of presumptions in establishing easements sional hiker traverses an isolated property,
by prescription we said: "There has been the same action cannot reasonably be ex-
considerable confusion in the cases involv- pected to halt a continuous influx of beach
ing the acquisition of easements by pre- users to an attractive seashore property.
scription, concerning the presence or ab- If the fee owner proves that he has made
sence of a presumption that the use is un- more than minimal and ineffectual efforts
der a claim of right adverse to the owner to exclude the public, then the trier of fact
of the servient tenement, and of which he must decide whether the owner's activities
has constructive notice, upon the showing have been adequate. If the owner has not
of an open, continuous, notorious and attempted to halt public use in any signifi-
peaceable use for the prescriptive period. cant way, however, it will be held as a
Some cases hold that from that showing a matter of law that he intended to dedicate
presumption arises that the use is under a the property or an easement therein to the
claim of right adverse to the owner. [Ci- public, and evidence that the public used
tations.] It has been intimated that the the, property for the prescriptive period is
presumption does not arise when the ease- sufficient to establish dedication.
ment is over unenclosed and unimproved This court has in the past been less
land. [Citations.] Other cases hold that receptive to arguments of implied dedica-
there must be specific direct evidence of tion when open beach lands were involved
an adverse claim of right, and in its ab- than it has when well-defined roadways
sence, a presumption of' permissive use is are at issue (Compare F. A. llihn Co. v.
indulged. [Citations.] The preferable City'of Santa Cruz, supra, 170 Cal. 436,
view is to treat the case the same as any 150 P. 62 to Schwerdtle v. County of Pla-
othe,. that is, the issue is ordinarily one of cer, supra, 108 Cal. 589, 47 P. 448.) With
fact, giving consideration to all the circum- the increased urbanization of this state,

however, beach areas are now as well-de- objection by the fee owner or persons act-
fined as roadways. This intensification ing under his direction and authority.
of land use combined with the clear public (Union Transp. Co. v. Sacramento County,
policy in favor of encouraging and expand- supra, 42 Cal.2d 235, 240, 241, 267 P.2d 10.)
ing public access to and use of shoreline
areas leads us to the conclusion that the The rare occasions when the fee
courts of this state must be as receptive to owners came onto the property in question
a finding of implied dedication of shoreline and casually granted permission to those
areas asethey are to a finding of implied already there have, likewise, no effect on
dedication of roadways. (For a similar re- the adverse user of the public. By giving
suit see State ex rel. Thornton v. Hay permission toan owner c.nnot dg-
(1969) Or., 462 P.2d 671.) permission to a few,.an owner cannot de-
(199) Or., 462 P.2d 671.) prive the many, whose rights are claimed
We conclude that there was an totally independent of any permission
implied dedication of property rights in asked or received of their interest in the
both cases. In both cases the public used land. (Seaway Company v. Attorney Gen-.
the land "for a period of more than five eral (Tex.Civ.App., supra) 375 S.W.2d 923,
years with full knowledge of the owner, 933-936.) rIf a constantly changing group
without asking or receiving permission to of persons use land in a public way with-
do so and without objection being made by out knowing or caring whether the owner
any one." (Union Transp. Co. v. Sacra- I permits their presence, it makes no differ-
mento County, supra, 42 Cal.2d 235, 240, ence that the owner has informed a few
267 P.2d 10, 13 quoting from Hare v. persons that their use of the land is per-
Craig, supra, 206 Cal. 753, 757, 276 P. 336.) missive only.
In both cases the public used the land in
public ways, as if the land was owned by a The present fee owners of the
government, as if the land were a public lands in question have of course made it
park. clear that they do not approve of the pub-
In Gion v. City of Santa Cruz, the pub- lie use of the property. Previous owners,
lic use of the land is accentuated by the however, by ignoring the wide-spread pub-
active participation of the city in maintain- lie use of the land for more that five years
ing the land and helping the public to en- have impliedly dedicated the property to
joy it. The variety and long duration of the public. Nothing can be done by the
these activities indicate conclusively that ,present owners to take back that which
the public looked to the city for mainte- was previously given away. In each
nance and care of the land and that the case the trial court found the elements
city came to view the land as public land. necessary to implied dedication were pres-
ent-use by the public for the prescrip-
No governmental agency took an active tive period without asking or receiv-
part in maintaining the beach and road in- ing permission from the fee owner. There
volved in Dietz v. King, but the public is no evidence that the respective fee
nonetheless treated the land as land they owners attempted to prevent or halt this
were free to use as they pleased. The evi- use. It follows as a matter of law that
dence indicates that for. over a hundred a dedication to the public took place.
years persons used the beach without re- The judgment in Giol is affirmed. The
gard to who owned it. A few persons may judgment in Dietz is reversed with direc-
have believed that the proprietors of the tions that judgment be entered in favor of
Navarro-by-the-Sea Hotel owned or super- plaintiffs.
vised the beacli, but no one paid any atten-
tion to any claim of the true owners. The
activities of the Navarro-by-the-Sea pro-
prietors in occasionally collecting tolls has
no effect on the public's rights in the prop-
erty because the question is whether the
public's use was free from interference or

STATE EX REL. THORNTON V. HAY

Supreme Court of Oregon, 1969

254 Ore. 584, 462 P. 2d 671

GOODWIN, Justice.
William and Georgianna Hay, the owners mean high tide and the visible line of
�of a' tourist facility at Cannon Beach, vegetation.s
appeal from a decree which enjoins them The vegetation line is the seaward edge
from constructing fences or other improve- of vegetation where the upland supports
ments in the dry-sand area between the vegetation. It falls generally in the
sixteen-foot elevation contour line and the vicinity of the sixteen-foot-elevation con-
ordinary high-tide line of the Pacific tour line, but is not at all points neces-
Ocean. sarily-identical with that line. Differences
The issue is whether the state has the between the vegetation line and the sixteen-
power to prevent the defendant landowners foot line are irrelevant for the purposes
from enclosing the dry-sand area contained of this case.
within the legal description of their ocean- The sixteen-foot line, which is an
front property. engineering line and not a line visible on
the ground, is mentioned in ORS 390.6-10,
The state asserts two theories: (1) the the ground is mentioned in ORs 9
and in the trial court's decree.
landowners' record title to the disputed area
is encumbered by a superior right in ihe The extreme high-tide line and the high-
public to go upon and enjoy the land for water mark are mentioned in the record,
recreational purposes; and (2) if the but will be treated as identical with the
disputed area is not encumbered by the vegetation line. While technical differences
asserted public easement, then the state between extreme high tide and the high-
has power to prevent construction under water mark, and between both lines and the
zoning regulations made pursuant to ORS sixteen-foot line, might have legal signifi-
390.640. cance in some other litigation, suchdiffer-
ences, if any, have none in this case. We
The defendant landowners concede that cite these variations in terminology only to
the State Highway Commission has stand- point out that the cases and statutes
ing to represent the rights of the public in relevant to the issues in this case, like the
this litigation, ORS 390.620, and that all witnesses, have not always used the same
tideland lying seaward of the ordinary, or words to describe similar topographical
mean high-tide line is a state recreation features.
area as defined in ORS 390,720.1
Below, or seaward of, the mean high-tide
From the trial record, applicable statutes, line, is the state-owned foreshore, or wet-
and court decisions, certain terms and sand area, in which the landowners in this
definitions have been extracted and will case concede the public's paramount right,
appear in this opirion,. A short glossary and concerning which there is no jnsticia-
follows: ble controversy.
ORS 390.720 refers to the "ordinary" The only issue in this case, as noted, is
high-tide line, while other sources refer the power of the state to limit the record
to the "mean" high-tide line. For the pur- owner's use and enjoyment of the dry-sand
poses of this case the two lines will be area, by whatever boundaries the area may
considered to be the same. The mean high- be described.
tide line in Oregon is fixed by the 1947 The trial court found that the public
Supplement to the 1929 United States Coast had acquired, over the years, an easement
and Geodetic Survey data. for recreational purposes to go upon and
and Geodetic Survey data.
enjoy the dry-sand area, and that this
The land area in dispute will be called easement was appurtenant to the wet-sand
the dry-sand area. This will be assumed portion of the beach which is admittedly
to be the land lying between the line of

owned by the state and designated as a and August 1967 the seaward edge of the
"state recreation area." dry-sand area involved in this litigation
Because we hold that the trial moved westward 180 feet. At other points
court correctly found in favor of the state along the shore, the evidence showed, the
on the rights of the public in the dry-sand seaward edge of the dry-sand area coutl
area, it follows that the state has an move an equal distance to the east in a
equitable right to protect the public in the similar period of time.
enjoyment of those rights by causing the Until very recently, no question con-
removal of fences and other obstacles. cerning the right of the public to enjoy the
It is not necessary, therefore, to consider dry-sand area appears to have been brought
whether ORS 390.640 would be constitution- before the courts of this state. The public's
al if it were to be applied as a zoning assumption that the dry sand as well as the
regulation to lands upon which the public foreshore was "public property" had been
had not acqtuired an easement for recrea- ; .reinforced by early judicial decisions. See
tional use. Shively v.'Bowlby, 152 U.S. 1, 14 S.Ct. 548,
In order to explain our reasons for af 38 L.Ed. 331 (1894), which affirmed
Bowlby v. Shively, 22 Or. 410, 30 P. 154
firming the trial court's decree, it is neces- Bowlby v. Sively 22 Or. 0, 30 P.
(1892). These cases held that landowners
sary tq set out in some detail the historical (182). The se cases held that landowners
facts which lead to our conclsion. claiming under federal patents owned sea-
ward'only to the "high-water" line, a line
that was then assumed to be the vegetation
enjoyed by the general public as a line.3
recreational adjunct of the wet-sand or
foreshore area since the beginning of the In 1935, the United States Supreme Court
state's political history. The first European held that a federal patent conveyed title to
settlers on these shores found the .land farther seaward, to the mean high-
aboriginal inhabitants using the foreshore tide line. Borax Consolidated, Itd. v. Los
for clam-digging and the dry-sand area Angeles, 296 U.S. 10, 56 S.Ct. 23, 80
for their cooking fires. The newcomers L.Ed. 9 (1935). While this decision may
continued these customs after statehood. have expanded seaward the record owner-
Thus, from the time of the earliest settle- ship of upland landowners, it was apparent-
ment to the present day, the general public ly little noticed by Oregonians. In any
has assumed that the dry-sand area was a event, the Borax decision had no discernible
part of the public beach, and the public has effect on the actual practices of Oregon
used the dry-sand area for picnics, gather- beachgoers and upland property owners.
ing wood, building warming fires, and Recently, however, the scarcity of ocean-
gefierally as a headquarters from which to front building sites has attracted substantial
supervise children or to range out over the private, investments in resort facilities.
foreshore as the tides advance and recede. Resort owners like these defendants now
In the Cannon Beach vicinity, state and desire to reserve for their paying guests the
local officers have policed the dry sand, recreational ad antages that accrue to the
and municipal sanitary crews have at- dry-sand portions of their deeded property.
tempted to keep the area reasonably free Consequently, ill 1967, public debate andl
from man-made litter. political activity resulted in legislative at-
Perhaps one explanation for the evolu- tempts to resolve conflicts between public
tion of the custom of the public to use the and private interests in the dry-sand area:
dry-sand area for recreational purposes is10 "(1) The Legislative
that the area could not be used convenient-
ly by its owners for any other purpose. Assembly hereby declares it is the public
The dry-sand area is unstable in its seaward policy of the State of Oregon to forever
boundaries, unsafe during winter storms, preserve aner maintain the sovereignty
and for the most part unfit for the con-
seashore and ocean beaches of the state
struction of permanent structures. While
the vegetation line remains relatively fixed,
the western edge of the dry-sand area is the Oregon-California line on the South
subject to dramatic moves eastward or so that the public may have the free and
westward in response to erosion and ac- uninterrupted use thereof.
cretion. For example, evidence in the trial "(2) The Legislative Assembly recog-
below indicated that between April 1966 nizes that over the years the public has

made frequent and uninterrupted use of can acquire easements in private land by
lands abutting, adjacent and contiguous long-continued user that is inconsistent with
to the public highways and state recrea- the owner's exclusive possession and en-
tion areas and recognizes, further; that joyment of his land. A citation of the cases
where such use has been sufficient to could end the discussion at this point. But
create casements in the public through because the early cases do not agree on
dedication, prescription, grant or other- the legal theories by which the results are
wise, that it is in the public interest to reached, and because this is an important
protect and preserve such public ease- case affecting valuable rights in land, it is
ments as a permanent part of Oregon's appropriate to review some of the law ap-
recreational resources. plicable to this case.
"(3) Accordingly, the Legislative As- One group of precedents relied tupon ill
senibly hereby declares that all public part by the state and by the trial court can
rights and casements in those lands be called the "implied-dedication" cases.
described in subsection (2) of this section The doctrine of implied dedication is well
are confirmed and declared vested known to the law in this state and elsc-
exclusively in the State of Oregon and where. See cases collected ifi Parks, The
shall be held and administered in the Law of Dedication in Oregon, 20 Or.L.Rcv.
same manner as those lands described in 111 (1941). Dedication, however, whether
ORS 390.720. express or implied, rests upon an intent to
,, * *" ,, dedicate.4 In the case at bar, it is unlikely
that the landowners thought they had any-
The state concedes that such legislation
thing to dedicate, until 1967, when the
cannot divest a person of his rights in land,
Hughes v. Washington, 389 U.S. 290, 88 S. of legislative debates about the
Ct. 438, 19 L.Ed.2d 530 (1967), and that the publics rights in the dry-sand area sent
a number of ocean-front landowners to the
defendants' record title, which includes the a er of oceanfront landowners to the
offices of their legal advisers.
dry-sand area, extends seaward to the
ordinary or mean high-tide line. Borax A second group of cases relied upon by
Consolidated Ltd. v. Los Angeles, supra. the state, but rejected by the trial court,
The landowners likewise concede that deals with the possibility of a landowners
since 1899 the public's rights in the fore- losing the exclusive possession and enjoy-
shore have been confirmed by law as well ment of his land through the development
as by custom and usage. Oregon Laws of prescriptive casements in the public.
1899, p. 3, provided: '- In Oregon, as in most common-laW juris-
"That the shore of the Pacific ocean, dictions, an easement can be created in
between ordinary high and extreme low favor of one person in the land of another
tides, and from the Columbia river on the by uninterrupted use and enjoyment of the
north to the south boundary line of land in a particular manner for the statu-
Clatsop county on the south, is hereby tory period, so long as the user is open,
declared a public highway, and shall for- adverse, under claim of right, but without
ever remain open as such to the public." authority of law or consent of the owner.
The disputed area is szi generis. While Feldman et ux. v. Knapp et ux., 196 Or. 453,
the foreshore is "owned" by the state, and 476, 250 P.2d 92 (1952); Coventon v;
the upland is "owned" by the patentee or Seufert, 23 Or. 548, 550, 32 P. 508 (1893).
record-title holder, neither cani be said to In Oregon, the prescriptive period is ten
"own" the full bundle of rights nornmally years. ORS 12.050. The public use of the
connoted by the term "estate in fee disputed land in the case at bar is admitted
simple." 1 Powell, Real Property � 163, at to be continuous for more than sixty years.
661 (1949). There is no suggestion in the record that
anyone's permission was sought or given;
In addition to the sui gencris nature of anyone's permission was sought or given;
rather, the punlic used the land under a
the lanld itself, a multitude of complex and
claim of right. Therefore, if the public
sometimes overlapping precedents ina the
law confronted the trial court. ,'Several can acquire a easement by prescription
early Oregon decisions generally support requirements for such an acquisition
have been met in connection with the'
the trial court's decision, i. e., that the public speific tract of land involved in this ae
specific tract of land involved in this ca0e.

100

The owners argue, however, that the The other reason which commends the
general public, not being subject to actions doctrine of custom over that of prescription
in trespass and ejectment, cannot acquire as the principal basis for the decision in this
rights by prescription, because the statute case is the unique nature of the lands in
of limitations is irrelevant when an action question. This case deals solely with the
* does not lie. dry-sand area along the Pacific shore, and
While it may not be feasible for a land- this land has been used by the public as
owner to sue the general publlic, it is none- public recreational land according to an un-
theless possible by means of signs and broken custom running back in time as long
fences to prevent or minimize pul)lic in- as the land has been inhabited.
vasions of private land for recreational A custom is defined in 1 Bouv. Law
purposes. In Oregon, moreover, the courts Dict., Rawle's Third Revision, p. 7-2 as
and the Legislative Assembly have both "such a usage as by common consent and
recognized that the public can acquire uniform practice has become the law of the
prescriptive casements in private land, at place, or of the subject matter to which
least for roads and highways. Scc, c. g., it relates."
Huggett et ux. v. Moran et ux., 201 Or. In I Blackstone, Commentaries *75-*78,
105, 266'P.2d 692 (1954), in which we ob- Sir William Blackstone set out the
served that counties could acquire public requisites of a particular custom.
roads by prescription. And see ORS 368.-
405, which provides for the mannr in Paraphrasing Blackstone, the first re-
which counties may establish roads. The quirement of a custom, to be recognized as
which counties may establish roads. The law, is that it mast be ancient. It must
statute enumerates the formal governmental hat it must be ancient. It mest
actions that can e employed, and then have been used so long "that the memory
actions that can be employed, aud then
concludes: "This section does not preclude
acquiring public ways by adverse user." Professor Cooley footnotes his edition of
Blackstone with the comment that "long
Another statute codifies a policy favor- and general" usage is sufficient. In any
ing the acquisition by prescription of public event, the record in the case at bar satisfies
recreational easements in beach lands. the requirement of antiquity. So long as
See ORS 390.610. While such a statute there has been an institutionaliz7d system
cannot create public rights at the expense of land tenure in Oregon, the public has
of a private landowner the statute can, and freely exercised the right to use the dry-
does, express legislative approval of the sand area up and down the Oregon coast
common-law doctrine of prescription where for the recreational purposes noted earlier
the facts justify its application. Con- in this opinion.
sequently, we conclude that the law in
Oregon, regardless of the generalizations The second requirement is that the right
be exercised without interruption.. A
that may apply elsewhere,5 does not pre-
clude the creation of prescriptive easements customary right need not be exercised con-
in beach land for public recreational use. tinuously, but it must be exercised without
an interruption caused by anyone possessing
Because many elements of prescription a paramount right. In the case at bar, there
are present in this case, the state has relied was evidence that the public's use and en-
upon the doctrine in support of the decree joyment of the dry-sand area had never
below. We believe, however, that there is a been interrupted by private landowners.
better legal basis for affirming the decree.
The most cogent basis for the decision in Blackstone's third requirement, that the
this case is the English doctrine of custom. customary use be peaceable and free from
Strictly construed, prescription applies only dispute, is satisfied by the evidence which
AV to the specific tract of land before the related to the second requirement.
court, and doubtful prescription cases could The fourth requirement, that of reasona-
fill the courts for years with tract-by-tract bleness, is satisfied by the evidence that the
litigation. An established custom, 'o01 the public has always made use of the land in a
other hand, can be proven with reference manner appropriate to the land and to the
to a larger region. Ocean-front lands from usages of the community. There is evi-
the northern to the southern border of the dence in the record that when inappro-
state ought to le treated uniformly.

101

priate uses have been detected, munici- many of our institutions by written law
pal police officers have intervened to rather than by customary law.6 This
preserve order. truism does not, however, militate against
The fifth requirement, certainty, is the validity of a custom when the custom
satisfied by the visible boundaries of the does in fact exist. If antiquity were the
dry-sand area and by the character of the sole test of validity of a custom, Oregonians
land, which limits the use thereof to could satisfy that requirement by recalling
recreational uses connected with the fore- that the European settlers were not the first
shore. people to use the dry-sand area as public
The sixth requirement is that a custom land.
must be obligatory; that -is, in the case at Finally, in support of custom, the record
bar, not left to the option of each lan'd- shows that the custom of the inhabitants of
owner whether or not he will recognize Oregon and of visitors in the state to use
the public's right to go upon the dry-sand the dry sand as a public recreation area is
area for recreational purposes. The record so notorious that notic'e of the custom otl
shows that the dry-sand area in question the part of persons buying land along the
has been used, as of right, uniformly with shore must be presumed. In the case at
similarly situated lands elsewhere, and that bar, the landowners conceded their actual
the public's use has never been questioned knowledge of the public's long-standing
by an upland owner so long as the public use of the .dry-sand area, and argued that
remained on the dry sand and refrained the elements of consent present in the
from trespassing upon the lands above the relationship between the landowners and
vegetation line. the public precluded the application of the
Finally, a custom must not be repugnant, law "of prescription. As noted, we are not
or inconsistent, with other customs or with resting this decision on prescription, and we
other law. The custom under consideration leave open the effect upon prescription of
violates no law, and is not repugnant. the type of consent that may have been
rtwo arguments have been arrayed present in this case. Such elements of con-
against the doctrine of custom as a basis sent are, however, wholly consistent with
for decision in Oregon. The first argu- the recognition of public rights derived
for decision in Oregon. The first argu- rom custom.
ment is that custom is unprecedented 'in
this state, and has only scant adherence Because so much of our law is the
elsewhere in the United States. The sec- product of legislation, we sometimncs lose
ond argument is that because of the rela- sight of the importance of custom as a
tive brevity of our political history it is source of law in our society. It seems
inappropriate to rely upon an English particularly appropriate in the case at bar
doctrine that requires greater antiquity than to look to an ancient and accepted custom
a newly-settled land can muster. Neither in this state as the source of a rule of law.
Bf these arguments is persuasive. The rule in this case, based upon custom,
The custom of the people of Oregon to is salutary in confirming a public right,
use the dry-sand area of the beaches for and at the same time it takes from no man
public recreational. purposes meets every anything which he has had a legitimate
one of Blackstone's requisites. While it is reason to regard as exclusively his.
not necessary to rely upon precedent from For the foregoing reasons, the decree of
other states, we are not the first state to the trial court is affirmed.
recognize custom as a source of law. See
Perley et ux'r v. Langley, 7 N.H. 233
(1834).
On the score of the brevity of our
political history, it is true that the Anglo-
American legal system on this continent is
relatively new. Its newness has made it
possible for government to provide for

102

IN RE OPINION OF TFIE J USTICES

Supreme Judicial Court of Massachusetts, 1974

313 N.E. 2d 561

To the Ilonorable the HIouse of Reprc- The bill further provides that it is not to
sentatives of the Commonwealth of Massa- be construed as altering existing statutory
chusetts: or common law property or personal rights
or remedies. It then states that any person
The Justices of the Supreme Judicial having a recorled interest in anv land af-
Court respectfully submit this reply to the fecte may "withi two years fr the ef-
feeted may "within two years from the ef-
question set forth in an order adopted by fective date of this act" petition the Supe-
the llouse on May 8, 197-4, and transmitted rior Court under G.L. . 79 "to determine
to tS Ol ay 1(, 1974. Tlhe order recites whether . . . the activities authorized
the pendency before the G(neral Court of herein constitute an injury for which the
a bill, a copy of which has been transmit-
ted to us with the order. The bill is enti- said chapter 79." I inally, tile ill requires
tied, "An Act authorizing public right-of- the (ommissioner of Public Works to
passage along certain coastline of the Com- record a notice of its adoption, prior to its
monwealth'" (tHouset No. 481). effective date, in every county where
The bill declares that the reserved inter- coastline land is required to lie recorded.
ests of the public in the land along the Ile is also required to give such notice by
coastline between the mncan high water line publication within sixty days after its ef-
and the extreme low water line include a fective date for three consecutive weeks in
'public on-foot free right-of-passage." newspapers in cities and towns containinig
This "right-of-passage" is only to ble exer- affected coastal land.
cised after sunrise and before one-half hour The order asserts that grave (Idht exists
after sunset and is not to be exercised in as to the constititionality of the bill if ei-
those areas designated by the Commissiol- acted into law and propounds the followin
cr of the I)epartment of Natural Resources q lstiog:
as of critical ecological significance and so
poste. It is not to he exercised where ."Would the pendling Bill if enlacted into
postell. It is IlOt to be exercised wncre law violate Article X of the 11ill of Rights
there exists a structure or enclosure autho- law violate Article of the pill of Riglt
of the Constitution of the Commonwealth
rizcd by law, or an agricultural fence en-
rize y law or an agrcltural fece - or the Fourteenth Amendment to the Con-
closing livestock, if such areas are clearly stitutioI of the Unit l States?"
stitution of the United States?".
posted. An attempt to prevent the exercise
of this right of passage is made punishable At common law private owner-
by fine, and the burden of proof in any ac- ship in coastal land extended oily as far as
tion concerning the exclusion of tile exer- ' mean high water lilne. Beyondl that, own-
cise of the right is to ble on the party seek- ership was in the Crown hlut subject to the
ing to exclu(le or limit it. Interference rights, of tile pullic to use the coastal wa-
with or making unsafe such passage is ters for fishing and navigation. Whittle-
made unlawful, all a civil remledy is pro- sey, l.aw of tile Seashore, Tidewaters and
vidledl to any persml affected by such ac- (;reat l'onds (1932) xxviii-xXix. ('om-
tion. Littering while e:ercising tile right nmonwealth v. Roxurl-y, ) (;ray 451, 482-
of passage is prohibited. The litnited tort 4183, (1857). When title was transferred
liability of G.L. e. 21, � 17C, is extendled to to private pelsons it remaiued impresscd
coastal owners with respect to persons cx- with these public rights. Shively v. Bowl-
ercising the "righl-of-passage" except for by, 152 U.S. 1, 13, 14 S.Ct, 548, 38 L. Ed,
injuries caused by a violation of the pro- 331 (1893). The prolperty inherent in the
posed act. C row in England was pa;ssed by charter

103

to the Massachusetts Bay Colony and ulti- seashore to the extent described and sub-
mately to the Commonwealth. Massachu- ject to the public rights reserved. It is illn-
setts Constitution, Part II, c. 6, art. 6. See necessary to cite more than a few of the
Commonwealth v. Roxhury, supra, 9 Gray many cases to that effect. In Common-
at 483-484. In the 1640's, in order to en- wealth v. Alger, 7 Cush. 53 (1851), proba-
(courage littoral owners to build wharves, bly the leading case on the subject, Chief
the colonial authorities took the extraordi- Justice Shaw wrote, "[The ordinance] irm-
nary step of extending private titles to en- ports not an easement, an incorporeal
compass land as far as mean low water right, license, or privilege, but a jus in re,
line or 10() rods from the mean high water a real or proprietary title to, and interest
line, whichever was~ the lesser measure. in, the soil itself, in contradistinction to a
Storer v. Ireecman, 6 Mass. 435 (1810). usufruct, or an uncertain and precarious
This was accomplished by what has become interest." Id. at 70. "[It created] a legal
known as the colonial ordinance of 1641- right and vested interest in the soil, alnd
47, which is found in the 1649 codification, not a mere permissive indulgence, or gra-
The Blook of the General Lawes and Lib- tuitous license, given without consideration,
ertyes, at p. 50. "Every Inhabitant who is and to he revoked and annulled it the
an housholder shall have free fishing and - pleasure of those who gave it." Id. at 71.
fowling in any great ponds, bayes, Coves
anid Rivers, so farr as the Sea ebbs and
flowes, within the precincts of the towne age If, therefore the right of eas-
where they dwell, uniles the freemen of the is
clares, merely an exercise of existing pub-
same Town or the General Court have oth-
erwise approprights, and not a taking of private prop-
erwise appropriated them The irty, it must be a natural derivative of the
which clearly to determine, It is Declared, rights preserved by the colonial ordinance.
That in all Cr eeks, Coves and other places, t has ee held proper to itrfr with
eabsout and upon Satl-hewater, where the Sea the private property rights of coastal own-
ajoys angd floles, thave proprietor of the land ers in the tidal area for purposes reasona-
adjoylling, shrll have propriety to the low- bly related to the protection or promotion
ter ark, where the Sea doth not eb of fishing or navigation without paying
above a hundred Rods, and not more
ove a hundred Rods, and not more compensation. Home for Aged Women v.
wheresoever it ebbs further. Provided that Commonwealth, 202 Mass. 422, 89 N.E. 124
such proprietor shall not by this liberty, (1909). Crocker v. Champlin, 2)2 Mass.
have power to stop or hinder the passage 437, 89 N.E. 129 (1909). An 'on-foot
of boates or other vessels, in or through right-of-passage" is not so related to these
any Sea, Creeks, or Coves, to other mnens public rights. The cases interpreting the
houses or lands." right of the public in navigation all deal
with the use in boats or other vessels of
Although strictly the ordinance was lim- the area below mean high water mark
ited to the area of the Massachusetts Bay "when covered with tide water." Co-
aMonwealth' v. Chariestown, 1 Pick. 180,
Colony, it has long been interpreted as ef- (1822). Commonwealth v. Chrleson, I ick. 18,
fecting a grant of the tidal land to all 183-184 (1822). Con alt v. ger,
coastal owners in the Commonlwealth. 7 Cush. 53, 97 (1851), Old Colony St. Ry.
Weston v. Sampson, 8 C ousth. 347 353354 v. Phillips, 207 Mass. 174, 180-181, 93 N.E.
Weston v. Sampson, 8 Cush. .347, 353-354
(1851), and cases cited. The language of 7 111). Thus the right of passage
the ordinance well illustrates the notion, over dry land at periods of low tide cannot
previously alluded to, of reserved public e enal included as o f the trdi-
right. It expressly specifies that the public
is to retain the rights of fishing, fowling
and navigation. Notwithstanding these We have frclquently had occasion
limitations and the use of such ambiguous to declare the limited nature of public
terms as "propriety" and "liberty," there is rights in the seashore. For example, a lit-
ample judicial authority to the effect that toral owner may build on his tidal land so
the ordinance is properly construed as as to exclude the public completely as long
granting the benefitted owners a fee in the as he dloes not unreasonably interfere with

104

navigation. Compare Austin v. Carter, 1 poses, as these words are commonly under-
Mass. 231 (1804), and Locke v. Motley, 2 stood, that part of the beach or shore
Gray 265 (1854), with Kcan v. Stetson, 5 above low-water mark, where the distance
Pick. 492 (1827). Nor do public rights ex- to high-water mark does not exceed one
tend so far as to give ian adjoining owner hundred rods, whether covered with water
the right to require a littoral owner to al- or not. It is plain we think, that under the
low the tidewater to flow across the shore law of Massachusetts there is no reserva-
to the former's land for drainage. Henry tion or recognition of bathing on the beach
v. Newburyport, 149 Mass. 582, 584-585, 22 as a separate right of property in individu-
N.E. 75 (1889). These limitations are also als or the public under the colonial ordi-
evident in comparing Weston 'v. Sampson, nance." Id. at 83-84, 80 N.E. at 689. See
8 Gush. 347 (1851), with Porter v. Shehan, Michaelson v. Silver Beach Improvement
7 (ray -135 (18561, both written by Chief Assn. Inc., 3-12 Mass. 251, 173 N.E.2d 273
Justice Shaw. In the Weston case, the de- (1961).
fend(ltts entered upon the plaintiffs' tidal
land by boat, and their digging for clams We have considered an able ar-
was held to be an exercise of the reserved gument made in the brief of one of the
public right of fishling. In the 'Porter case, ainici curiae that we should interpret the
however, it was deemed a trespass for the colonial ordinance as vesting in the Com-
defendmant to enter and take five cords of monwealtll the right to allow all signifi-
muscle mtud "consisting of living and dead cant public uses in the seashore. It is con-
shell fish . . . and the soil or clay in tended that while fishing, fowling and nav-
which they were found," an'd used princi- igation may have exhausted these uses in
pally as a fertilizer. 7 Gray at 435-436. 1647, these public uses change with time
The Chief Justice wrote that this exceeded anld now must be deemed to include the im-
the public rights in fishing, and that there portant public interest in recreation.
was "no right to take the soil, or fish shells, , Whatever may be the propriety of such au
part of the soil, except as slight portions interpretation with respect to public rights
of the soil would necessarily and ordinarily in littoral land held by the State, compare
he attached to shell fish, when taken." Id. Borough of Neptune City v. Borough of
at 4.37. A1 similar contrast may be dis- Avon-by-the Sea, 61 N.J. 296, 308-309, 294
cerned in Anthony v. Gifford, 2 Allen 549 A.2d 47 (1972), we think the cases we
(1861), in which it was held that the re- have cited make clear that the grant to pri-
served public rights could be exercised un- vate parties effected by the colonial ordi-
der a statute allowing any person to collect nance has never been interpreted to pro-
seaweed, kelp and other marine plants vide the littoral owners only such uncertain
"[s]o long as they are afloat and driven or ind ephemeral rights as would result from
moved from place to place by the rising such an interpretation. The rights of the
tide," id. at 55(1, but not once they had ppublic though strictly protected have also
come to rest on the beach land owned pri- been strictly confined to these well defined
vately by virtue of the colonial ordinance. areas. "[T]he only specific powers which
have been expressly recognized as exercis-
l,'e are unable to find any authori- able without compensation to private par-
ty that the rights of the public include\a ties are those to regulate and improve nav-
right to walk on the beach. In a .case igation and the fisheries." Michaelson v.
presenting a very similar question to' that Silver Beach Improvement Assn. Inc., 342
raised by the bill, it was held that the pub- Mass. 251, 256, 173 N.E.2d 273, 277 (1961).
lic rights in the seashore do not include a Since this is not such a project or regula-
right to use otherwise private beaches for tion it cannot be considered merely a mani-
pulblic bathing. nutler v. Attorney Gen., festation of the reserved rights of the pub-
1(5 Mass. 79, 80 N.E. 688 (19!)t7). "We lie.
think that there is a right to swim or float
in or upon public waters as well as to sail It is next necessary to inquire
upon them. But we do not think that this whether the authorization of the right of
includes a right to use for bathing pur- passage provided by the bill, while not
within the public rigihts reserved by the co.-

105

lonial ordinance, is nonetheless a proper as a matter of constitutional law, favor the
exercise of the Commonwealth's police narrowest interpretalion of "takings" agree
power and, as such, does not require that that a "physical invasion" mutist be so con-
compensation be paid to the private own- sidered, Bosselman, Cailies & Banta, su-
ers. See, e. g., Massachusetts Comlin. pra, at 254-255.
Against Discrimination v. Colangelo, 344
Mass. 387, 394-397, 182 N.E'.2d 595 (1(,2). The hill, therefore, would effectively ap-
The elusive border between the police pow- propriate property of individuals to a pub-
er of the State and the prohibition against lic use and thus is controlled by the consti-
taking of property without compensation \ tutional restriction of art. 10 of the Decla-
has been the subject of extensive litigation ration of Rights of the Massachusetts Con-
and commentary. See lBossclman, Callies stitution, and the Foutrteenth Amendmctut
& Banta,, The Taking Issue (1973). But to the United States Constitution. These
these difficulties need not concern us here. provisiolls require that such takings be for
The permanent physical intrusion into the a public purpose and that reasonable corn-
property of private persons, which the bill pcnsation be paid. Sec Caleb Pierce, Inc.
would establish, is a taking of property v. Commlonwealth, 354 Mass. 306, 308-309,
within even the most narrow construction 237 N.1'.2d 63 (1968). We think it is evi-
of that phrase possible under the Constitu- dent that the creation of the proposed right
tions of the Commonwealth and of the of passage would serve the recognized pub-
United States. lie interest in the providing of recreational
facilities. Salisbury l.and & Improvement
It is true that the bill does not Co. v. Commonwealth, 215 Mass. 371, 374,
completely deprive private owners of all 102 N.E'. 619 (1913). Rindge Co. v. Coun-
use of their seashore property in the sense ty of l.os Angeles, 262 U.S. 7010, 708, 43
that a formal taking does. But tile case is S.Ct. 689, 67 L.Ed. 1186 (1923). There is
readily' distinguishable from such regula- considerable question, however, whether
tion as merely prohibits somec particular the bill as written malkes adequate provision
use or uses which are harmful to the pub- for the constitutional requirement of fair
lie. Sec Commonwealth v. Alger, 7 Cush. conlpensation.
53, 86 (1851). The interference with pri-
vate property here involves a wholesale de-
nial of an owner's right to exclude tle Thc lill permits "any LIcrsol hav-
public. If a possessory itrest il ing a recorded inlterest in any land affect-
public. If a possessory interest ist d" he ithitwo years tl "peti-
property has any meaning at all it must in-
elude the general right to exclude others. tion the supeior cofrt under the provi-
Nichols, Eminent Domain (Rev. 3d ed.) � SionS of chapter 79 of the General laws to
S ~.1 [1] (1970).~ ~detcrmilne whether this section or the ac-
tivities authorized . . . [by the bill]
Here the Commonwealth proposes to constitute an injury for which the owner is
take easements for the benefit of the publ- entitled to conmpensation under said chapter
lie, Grove Hlall Sav. Bank v. Dedham, 284 79." The exact intended meaning of this
Mass. 92, 187 N.E. 182 (1933); Cayon v. provision is somewhat unclear but we think
Chicopee, - Mass. -, - , 277 N. that: evenl under the most generous inter-
E.2d 116 (1971)," and compensation is re- pretation it is insufficient to satisfy the
quired. The bill seeks to requlire private constitutional requiremient of comnpensatioln.
owners to permit affirmative physical use By its choice of the word "injury" rath-
of their property by the public. "[W]e er than "taking" or "appropriatilll," the
know no right which the legislature have bill may be inaking special -re ferunee to (G.
to require a citizen to make his property L. c. 79, � 0, whichl permits coilplnsaltion
convenient for his neighbor's use without to hle awarlded under G.LV' c. 79t fir "i lju -
compensation." Morse v. Stocker, I Allen ry" to real estate ceau.ed "by tile ctablishl-
150, 158 (1861). S;ce Delaware, Lacka- meint, construction, maintenai ce, olerlation,
wanna & Westeru R. R. v. Morristown, alteration, repair or discontilnulilaes of a
276 L.S. 182, 194-1!5, 48 S.Ct. 276, 72 L.. ulblic improvemenict which cloes not involve
I.d. 523 (19281). Ev,.n commentators who, the taking of privatt properly. .'. '.he lan-

10'6

gulage of [this statuill] reflects the distinc- Jnstices, 330 Mass. 713, 718--70, 113 N.1:.
lion bctwecll takings, for which comlpcelsa- 2dl 452 (1953), particular care mnust he tak-
tion is compelled, and other injuries which enl when the delegation crosses tile Otultd:t-
are comlpensate(l only as a matter of legis- ries of the three departments of govern-
lative graceO." ('aln v. Commonwealth, 353 mient. lIn Varick v. Smith, 5 I'aige, 137,
Mass. 71, 7-, 228 N.E.2d 67, 68 (1967). it is said that thc legislature is the sole
Such an interpretation of the bill, applying judge as to the expedi ency of
the compensation provisions only to indi- cxercising the right of eminent (lomain
rect injury to the npland property of littor- . . . either for the bentefit of the in-
:ml owners, is plausille given the .lill's ini- habitants of the state or of any particular
tial statement that Ihe proposed right of portion thereof." Dingley v. Boston, 100
passage represents merely an exercise of Mass. 54-I, 558 (1868).8
reserved pllblic righis. If this intcrpretl- Iven if we were to hold that com-
tion is correct the bill is plainly deficient pensatioll to private owners for the taking
for failing to provi(le comnl)cnsition for the of this public easenient were provided in
taking of tidal land which we have found the bill it would still be constitutionally cie-
implicit in its terms. fective, for the procedure proposed is ilnad-
E'1ven if we were to constrlue the cqnate both in the scope of its potential
"iujl ry" alluded to in the bill to lie the compensation and the notice accorded to
i;tking of the right of passage itself, the property owners of their right to recover
metho(l of compensation provided is inade- damages.
qluate. Such a taking with compensation
'should not lie accomplished by th use of The only property owners given
ambliguolus or uncerta;in langlage." (;lolcr an opportunity to seek' damages are those
v. Boston, 1-4 Gray 282, 288 (1859). TIurn- having a recorded interest in affected
er v. Gardnler, 216 MlRass. 65, 70, 103 N.E. property. It is obvious that this omits all
54 (1913). It is not sufficient for a stat-, property owners aho hold their title by ui-
W e to i orize a taing and tl provide recorded deed or adverse possession. l:i-
nte to anthorize a taking andi then provide
... posibility of co.mpensation i .n iettr ther manner of acquiring property gives
a possibility of compensation in a later
proceeding as this bill would do. "The good title. While the grantee under all n-
power to take and the obligation to indenl- recorded deed may not prevail agailst
inify for the taking are inseparable." At- those protected by the recording statute, he
torney (Gen. v. ()ld Colony R.R., 160 Mass. still possesses a valuable property interest,
62, 90, ,.3 NX.F . . 252, 257 (1893) qttuotitng see Jacobs v. Jacobs, 321 Mass. 350, .51,
6from 9,rry v. Midlan52 2 .(.8, 127 Mass. 73 N.E.2d 477 (1947), and is thus entitled
f571 5/ r (1879). Mdnd R. 12Mas to compensation. See Old Colony & iaIll
River R.R. v. County of Plymoutih, 14
\Vhlat the bill in effect attemllpts is Gray 155, 161 (1859). Similarly, we 1:have
to transfer froml the i.egislature to the held that one holding title by adverse pos-
courts no; meirely the decision on the session, as well as a holder by adverse
atollotlt of compensation lint also the deci- possession which has not yet ripened into
sion whether or not to compensate, that is, title, may maintain an action for conm-
whether or not to exercise the power of pensation for a taking by the Commonl-
eminent domlain. TFlis would raise serious wealth. Andrew v. Nantasket Beach R.R.,
constitutional questions with respect to the 152 Mass. 506, 25 N.E. 966 (189()). Since
separation of pIwers. See art. 31) of the the proposed bill does not provide compllcn-
I )ecla;ration of Rights of the Massachusdtts sation for either of these classes of owners
Constitution. Article 10 of the l)eclaration it is constitutionally inadequate. '
of Rights provides that private property
ma~y not. be alpropriated to public uses Furthermore, with respect to th ose o'Iwn-
ers as well as to thlose of recorledl inter-
without the consent of the owner or "of
ests, it is a matter of serious question
the rpelncsent;ative body of the people ests, it is a matter of serious lstio
The e enti o el whether the method of notice to affected
TIhe poU'Ce of emtilenlt domalin is a legisla-
property owners is sufficient. Notice prior
tive power. T1albot v. Iludson, 16 Gray
17 42(-2 (18(). Niehols Emient to the exercise of the power of elmillclt
417)omain (Re42042 2 (1860). Nichols, minent domain is constitutionally required. Apple-
Domain (Re.3d Ed.) 3.2 (1973). While toll v. Newton, 178 Mass. 276, 281, 56 N.E.
that power may be delegated to various
that power may be delegated to vaos 648 (1901). The bill provides only con-
pubilic and private agencies, Opinion of the
structive notice by recording and p0nbli7a-

107

tion. A number of our older cases may be newspaper publication rarely informs a
read to hold that such constructive notice landowner of proceedings against his
is adequate. Taylor v. County Commrs. of property." Walker v. IlHutchillsoll, supra,
Hampden, 18 Pick. 309, 311-312 (1836). 352 U.S. at 116, 77 S.Ct. at 202. The
Brock v. Old Colony R.R., 146 Mass. 194, recording of notice, which the bill would
15 N.E. 555 (1888). Appleton v. Newton, require, does not significantly increase the
supra, 178 Mass. at 281-283, 56 N.E. 648. likelihood that the taking will come to the
More recent cases of the United States Su- attention of affected owners before the
preme Court, however, suggest that a more two-year period expires. First, since there
stringent standard is necessary to satisfy is no requirement that the notice be in-
the notice requirements of the lFourteenth dexed or recorded on the certificate of
Amendment. In \Valker v. IHutchinson, registration of registered land, such notice
352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 will not he specifically directed to the af-
(1956), the court found that notice by plub- fected landll. Second, even if this were not
lication was insufficient to meet the proper the case, owners rarely have recourse to
due process standard in a condemnation the registries of declds other than oil the
proceeding. The same was found true of sale or purchase of real estate. It is ni11-
more extensive publication, together with likely that any but a very few of the af-
posting in the vicinity of the condemned feccted littoral owners would have occasion
property, in Schroeder v. City of New to come into contact with the recorded no-
York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d lices. Since individual personal notice is
255 (1962). In both of these cases the possible in most cases merely by obtaining
court applied the notice standard articulat- the necessary names and addresses of the
ed in Mullane v. Central Hanover Bank & appropriate parties from the local assessors
Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 of the cities and towns where the land is
L.Ed. 865 (1950), in which it was said that located, the procedure prescribed in the hill
what was required was "notice reasonably would not comport with due process.
calculated, unmder all the circumstances, to
For all of the above reasons we believe
apprise interested parties of the pendency the bill if enacted into law wo eiolate
the bill if enacted into law would violate
of the action and afford them an opportu-
nity to present their objections." Id. t art. 10 of the Dcclaration of Rights of the
nity to present their objections." Id. at
314 7 a 657 Massachusetts Constitution, and the Four-
teenth Amendment to the Constitution of
The notice provisions of the bill the United States. The foregoing dliscus-
fall short of this standard. As was noted
sion, however, is intended to give inldlcatio
in the above cited cases, publication is in-
adequate when the naes and addresses of of the alterations necessary to rendler the
adcqulate whenl the names and addresses of bill constitutionally adequate.
the affected persons are available. Walker
v. Ilftchinson, supra, 352 U.S. at 116, 77 We answer the question "Yes."
S.Ct. 2(1(). Schroeder v. City of New
York, supra, 371 U.S. at 212-213, 83 S.Ct. Mr. Justice KAPLAN did not partici-
279. "It is colmmnon knowledge that mere pate in this opinion.
G. JOSEPH TAURO
PIAUL C. REARDON
FRANCIS J. QUIRICO
ROBERT BRAUCIJER
EDWARD F. HEINNESSEY
HERBERT P. WILKINS

108

NOTE

Beach Access

Increased demands for public recreational use and ecological
awareness have created a struggle between the public right of access
and use of the shoreline and the property rights of the private upland
owner. While the public may have the right to use the beach area
under the public trust or a related doctrine, a separate problem
arises concerning the need to cross privately owned uplands to gain
access to the beach. In the materials covered up to this point, the
questions of who owns the beach and has the right to use the beach
area have been examined. On the other hand, the issue of beach
access involves problems arising when obstacles blocking the public
way to the beach are erected -- either by the private owners, to
prevent access to the beach or the use of the beach itself as a public
way, or by public bodies or governmental units, in the form of legal
as well as physical restraints. Cf. Borough of Neptune City v. Borough
of Avon-by-the-Sea, 61 N.J. 296, 294 A. 2d 47 (1972).

The greatest deterrant to governmental action which increases
public rights at the expense of private owners is the taking clause of
the fifth amendment, as made applicable to the states by the fourteenth
amendment. Several approaches have developed to determine the
extent of public right of way and easement rights:

(a) Prescriptive easements in beach property arise when the public
continually uses the land of another for a prescribed period of time.
Such use must be adverse under a claim of right with the actual or
imputed knowledge of the owner. In City of Daytona Beach v. Tona-
Rama, Inc., 271 So. 2d 765 (Fla. 1974), the public had used the soft
sand area for twenty years as a thoroughfare for sunbathing and
general recreation, and the city had constantly policed the area and
kept it clean. In an action to enjoin the purported owners to remove
an observation tower, the District Court of Appeal held that where
such use was open, notorious and adverse under an apparent claim
of right and without material challenge or interference by the owner,
the public had acquired a prescriptive right to continued use and en-
joyment of the area. Once a prescriptive easement is established,
what factors should determine whether a particular use by the private
owner is prohibitted, as inconsistent with the public's easement?
Must the private owner allow any public use? flow does the taking
clause of the fifth amendment relate to this problem?

(b) Unlike prescriptive easements, a theory of dedication may pro-
vide public access once an intent is shown by the owner to allow public
use, without any requisite time period. This intent may be either

109

express or implied from the actions of the owner or the public.
However, a number of problems arise:
(1) The dedication doctrine was applied early to roads crossing pri-
vate property in the developing days of transportation. What
policies make extension of the doctrine to beaches appropriate ?
(2) What justification is there for requiring a private landowner to
act to avoid the implied dedication of his land to public use?
(3) Why should the burden of proof be on the owner to show that
earlier public access was by revocable license, to avoid implied
dedication?
(4) On the other hand, if the public has been using the land in question,
what has the landowner really lost?
(5) Arguably, the theory of dedication avoids the taking issue by im-
plying a gift to the public from the owner's intent to dedicate the
land to public use. In reality, is this a sound implication or a
legal end run?
(6) It appears possible that, on balance, the public will lose more
access than it gains, once private owners begin taking steps to
exclude the public from crossing their land to avoid the implica-
tion of an intent to dedicate. Does this affect the usefulness of
this doctrine?

(c) In Thornton v. Hay, the court revived the common law doctrine
of customary rights in this country. How can one justify deeming a
custom in this coluntry old enough to be "immemorial"? What justi-
fication is there for finding a state-wide custom, as opposed to a
narrowly defined geographic area? In Hawaii, two recent supreme
court cases have pronounced that the entire area up to the vegetation
line is public land. County of Hawaii v. Sotomura, 517 P. 2d 57 (1973);
In re Ashford, 50 Hawaii 314, 440 P. 2d 76 (1968). The doctrine of
customary rights is one possible solution to the problem of providing
ways of passage or access to that area across privately held lands.
What public policies justify this application in Hawaii? To what ex-
tent can arguments here be based on historical usages?

(d) In the Neptune City case reprinted above, .the public trust doc-
trine was extended to include recreational uses, as well as navigation,
commerce and fishing. However, in Opinion of the Justices, the court
refused to so extend the doctrine. What arguments can be raised to
support each determination? Do different public uses raise policies
which influence the court's willingness to strictly denounce public
access as a taking without compensation?

(e) Another approach available for providing public access is the
zoning of districts in shoreline areas which provides for all streets
designed at angles other than parellel to a public recreation resource,
such as a beach, to be mapped to the boundary of that resource. This
allows compatible development without allowing such development to
obstruct the public way of passage to the beach. In addition, where
large areas of shoreline are developed, the zoning ordinance may

110

provide that a public way be provided from a public roadway to the
recreation area at 600 feet intervals along the shoreline. Ior an
example of this approach, see "Zoning Ordinance, Currituck C'ounty,
North Carolina", State of North Carolina, Department of Local
Affairs, i)ivision of Community Planning.

(f) The Texas Open Beaches Act

In reaction to the Texas Supreme Court's rejection of the vege-
tation line and adoption of an average high tide line as the seaward
boundary of privately owned land in Luttes v. State , 324 S. W. 2d 167
(1959), private landowners began erecting barriers to prevent public
traffic across and use of areas they had previously assumed to be
controlled by the state, The Texas legislature, in Special Session,
responded by enacting the Open Beaches Act, 'Tex. Rev. Stat. Ann.
art. 5415d (1959).
The Act declares the public policy of the state to uphold the
public right of ingress and egress to that portion of the beach owned
by the state and also to that portion of the beach extending from the
line of mean low tide to the line of vegetation. In effect, the Act
creates a presumption of prescriptive right to an area which includes
privately owned land between the average high tide line and the vege-
tation line.
This is accomplished by a provision that a showing that the
land in question is within the area from mean low tide to the vegeta-
tion line is prima facie evidence that (1) the title of the littoral owner
does not include the right to prevent the public from using the area
for ingress and egress to the sea, and (2) there has been imposed
upon the area subject to proof of easement a prescriptive right or
easement in favor of the public for ingress and egress to the sea.
Since the right to use and pass across land canl be equated to
property interests, and private property may not be taken for public
purposes without due process of law, IU.S. Const. amend. V and
amend. XIV, sec. 1, this prima facie case treads upon doubtful
Constitutional ground. In an apparent effort to avoid this problem,
the Texas legislature qualified its assertion of public rights with a
condition precedent that the public must have already acquired these
rights under the common law doctrines of dedication and prescrip-
tion or as a "retained . . . right by virtue of continuous right in the
public", Art. 5415d, sec. 1. While the meaning of this latter phrase
has yet to be judicially determined, it appears that there are two
possible views of the Act. It may be merely a statutory restatement
of common law public rights, with procedural provisions to aid in
the assertion of those rights, or it may be a positive assertion of
use and access rights, which may be attacked in the future on
Constitutional grounds.
In two opinions which have mentioned the Act, these questions
were left unsettled. In Gulf Holding Co. v. Brazoria County, 49)7

Lii-

S. W. 2d 614 (1973), the court upheld a temporary injunction granted
by the trial court, in view of the Texas "Open Beaches Act", re-
jecting the degendant's claim that the Act was not applicable to the
land in question because it was not a beach on the Gulf of Mexico.
In Seaway Co. v. Attorney General, 375 S. W. 2d 923 (Civ. App. 1964)
the court found it unnecessary to pass upon the Constitutional validity
of that provision of the Act, since the plaintiff's claim did not rely
on the statutory presumption.
There are further limitations placed upon the scope of coverage
of the Act. It is limited in geographic scope to "beaches bordering
on the seaward shore of the Gulf of Mexico". The Act exempts any
structures built by governmental entities from coverage, as it does
livestock fences and other obstructions where the beach is inacces-
sible to motor traffic via public roads or along the beach. The Act
also provides that avenues of passage provisions are satisfied by
existing roads that are available to the public.

For more on beach access See D. Owen and D. Brower, PUBLIC USE OF
COASTAL BEACHES (U.N.C. Sea Grant, 1976)

112

CHAPTER SIX

GOVERNMENT DEVELOPmENTAL AND REGULATORY

ACTIVITIES IN COASTAL AREAS

SECTION 1I GOVERNMENTAL CONSERVATION AND DEVELOPMENT

A. Public Lands.

One of the main means for preserving the coastal
environment and controlling its development is through
the National Park System. Instigated in 1872 with the
establishment of Yellowstone National Park, the System
is administered by the National Park Service of the De-
partment of the Interior. The National Park Service
has been given the duty to:

promote and regulate the use of the Federal areas
known as national parks, monuments, and reserva-
tions. . . by such means and measures as conform
to the fundamental purpose of the said parks, monu-
ments, and reservations, which purpose is to con-
serve the scenery and the natural and historical
objects and the wildlife therein and to provide for
the enjoyment of the same in such manner and by
such means as will leave them unimpaired for the
enjoyment of future generations.

16 U.S.C. �1 (1970).
The National Park System contains over 23.3 million
acres of land composed of three basic types: natural,
historical, and recreational.1 All of these types can be
found in the coastal region.2 In that region, the national
seashores are of significance. Established by acts of Con-
gress, ten such seashores include: Assateague Island
(Maryland and Virginia), Cape Cod (Massachusetts), Cape
Hatteras (North Carolina), Cape Lookout (North Carolina),
Fire Island (New York), Padre Island (Texas), Point Reyes
(California), Gulf Islands (Mississippi and Florida),
Cumberland Island (Georgia), and Canaveral (Florida). 16
U.S.C. �459a-j (Supp. V, 1975).

1. Environmental Law Institute, Federal Environmental
Law (Dolgin & Guilbert, eds. 1974) at 498-99.

2. Id. at 837.

113

Closely linked with the National Park System is the
National Wildlife Refuge System. Originally reserved by
executive order, the reservation of federal land for such
refuges can now be obtained by legislative authority.3 The
Bureau of Sport Fisheries and Wildlife, under the Department
of the Interior, administers these refuges to conserve and
protect the native fish and wildlife. 16 U.S.C. �668dd
(1970). One objective of the program is to shelter water-
fowl and shore birds; thus, many of the refuges are found
in coastal areas.4
Status as a park or refuge can be used as a foundation
for legal action to protect the designated area. In United
States v. Florida Power and Light Company, 311 F. Supp. 1391
(S.D.Fla. 1970), the United States government sought to pro-
tect Biscayne Bay from discharges of heated water by a power
plant. The fact that Biscayne Bay was a national monument
served as a justification for this affirmative federal
action.5 Also, in Berkson v. Morton, 2 E.L.R. 20659 (D.Md.
Oct. 1, 1971), the National Historic Preservation Act of
1966, 16 U.S.C. ��470 et seq. (1970), provided one of the
bases for restraining the Interior Department from con-
structing a boat landing in the C. & 0. Canal National
Historic Park. In this case, private citizens used park
status as justification for challenging federal procedures.6
Thus, status as a park or refuge can protect an area from
governmental and private infiltration and destruction.
- A more recent type of legislation for conserving coastal
resources is the Marine Sanctuary Act which follows.

3. Id. at 838.

4. Id.

5. Id.

6. Id. at 839.

114

THE MARINE SANCTUARIES ACT OF 197,2

16 U.S.C. ��1431 et seq.

� 1431. Definition
The term "Secretary", when used in this chapter, means Secretary
of Commerce.

� 1432. Designation of sanctuaries-Secretary of Com-
merce; consultation; proposed designations
(a) The Secretary, after consultation with the Secretaries of State,
Defense, the Interior, and Transportation, the Administrator, and the
heads of other interested Federal agencies, and with the approval of
the President, may designate as marine sanctuaries those areas of the
ocean waters, as far seaward as the outer edge of the Continental
Shelf, as defined in the Convention of the Continental Shelf (15 U.S.
T. 74; TIAS 5578), of other coastal waters where the tide ebbs and
flows, or of the Great Lakes and their connecting waters, which he de-
termines necessary for the purpose of preserving or restoring such
areas for their conservation, recreational, ecological, or esthetic values.
The consultation shall include an opportunity to review and comment
on a specific proposed designation.
(b) Prior to designating a marine sanctuary which includes waters
lying within the territorial limits of any State or superjacent to the
subsoil and seabed within the seaward boundary of a coastal State, as
that boundary is defined in section 1301 of Title 43, the Secretary
shall consult with, and give due consideration to the views of, the re-
sponsible officials of the State involved. As to such waters, a desig-
nation under this section shall become effective sixty days after it is
published, unless the Governor of ally State involved shall, before the
expiration of the sixty-day 'period, certify to the Secretary that the
designation, or a specified portion thereof, is unacceptable to his
State, in which case the designated sanctuary shall not include the
area certified as unacceptable until such time as the Governor with-
draws his certification of unacceptability.
(c) When a marine sanctuary is designated, pursuant to this sec-
tion, which includes an area of ocean waters outside the territorial ju-
risdiction of the United States, the Secretary of State shall take such
actions as may be appropriate to enter into negotiations with other
Governments for the purpose of arriving at necessary agreements with
those Governments, in order to protect such sanctuary and to promote
the purposes for which it was established.
(e) Before a marine sanctuary is designated under this section, the
Secretary shall hold public hearings in the coastal areas which would
be most directly affected by such designation, for the purpose of re-
ceiving and giving proper consideration to the views of any interested
party. Such hearings shall be held no earlier than thirty days after
the publication of a public notice thereof.
(f) After a marine sanctuary has been designated under this sec-
tion, the Secretary, after cons ultation with other interested Federal
agencies, shall issue necessary and reasonable regulations to control
any activities permitted within the designated marine sanctuary, and
no permit, license, or other authorization issued pursuant to any other
authority shall be valid unless the Secretary shall certify that the per-
mitted activity is consistent with the purposes of this chapter and can
be carried out within the regulations promulgated under this section.

115

1433. Penalties
l) Any person subject to the jurisdiction of the United States who
i hlates any regulation issued pursuant to this chapter shall be liable
., l civil penalty of not more than $50,000 for each such violation, to
!,, a;ssessed by the Secretary. Each day of a continuing violation shall
� ,"nstitute a separate violation.
,b) No penalty shall be assessed under this section until the person
.1Irged has been given notice and an opportunity to be heard. Upon
. ,ilure of the offending party to pay an assessed penalty, the Attorney
,;oruoral, at the request of the Secretary, shall commence action in the
i,ppropriate district court of the United States to collect the penalty'
o!,., to seek such other relief as may be appropriate.
(,) A vessel used in the violation of a regulation issued pursuant to
!chi- .lapter shall be liable in rem for ahy civil penalty assessed for
.-;(I .iolation and may be proceeded against in any district court of
, il IU'lited States having jurisdiction thereof.
(d, Thee district courts of the United States shall have jurisdiction
to restrairl a violation of the regulations issued pursuant to this chap-
�,r, ,',nd to grant such other relief as may be appropriate. Actions
-,d!l e,( brought by the Attorney General in the name of the United
-:!lt.s., cither on his own initiative or at the request of the Secretary.
!':, l.. 92-532, Title III, � 303, Oct. 23, 1972, 86 Stat. 1062.

SECRETARY OF COMMERCE MARINE SANCTUARIES GUIDELINES

15 C.F.R. � 922 (1976)

� 922.1 Policy and objectives. � 922.2 * Programmatic objectives.
(a) The Marine Sanctuaries Program Marine Sanctuaries may be designated
shall be conducted under the expressed to preserve, restore, or enhance areas for
policy of the Title which is to designate their conservational, recreational, eco-
areas as far seaward as the outer edge of logical, research or esthetic values in
the continental shelf, as defined in the coastal waters. Anticipated examples
Convention of the Continental Shelf, 15 include:
U.S.T. 74; TIAS 5578, of other coastal (a) Areas necessary to protect valu-
waters where the tide ebbs and flows, or able, unique or endangered marine life,
of the Great Lakes and their connecting geological features, and oceanographic
waters, which the Administrator deter- features.
mines necessary for the purpose of pre- (b) Areas to complement and enhance
serving or restoring such areas for their public areas such as parks, national sea-
conservation, recreational, ecological, or shores and national or state monuments
esthetic values.. and other iPreserved areas.
(b) Multiple use of marine sanctuaries (c) Areas important to the survival
as defined in this subpart will be permit- and preservation of the nation's fisheries
ted to the extent the uses are conipatible and other ocean resources.
with the primary purpose(s) of the (d) Areas to advance and promote re-
sanctuary. search which will lead to a more thor-
' (c) It is anticipated that the marine ough understanding of the marine eco-
sanctuaries program will be conducted in system and the impact of man's
close cooperation with section 312 of the activities.
Coastal Zone Management Act of 1972,
P.L. 92-583, which recognizes that the Subpart 9-Classflcatlon of Marine
Sa nctuaries
coastal zone is rich in a variety of natu- anctuaries
ral, commercial, recreational, industrial � 922.10 Classifications,
and esthetic resources of immediate and Multiple use may be permitted in each
potential value to the present and future classification to the extent the uses are
well-being of the nation and which au- compatible with the primary purpose(s)
thorizes the Secretary of Commerce to for which the sanctuary is established.
make available to a coastal State grants Areas may be established to augment
of up to 50 percent of the costs of acqui- public and private lands or marine areas
sition, development and operation of set aside by local, state or Federal gov-
estuarine sanctuaries. ernment and private. organizations for
analogous purposes, Marine sanctuaries
116

will be established for one, or a combina- ward as the outer edge :of the Conti-
tion of, the following purposes: nental Shelf, as defined in the Conven-
(a) Habitat areas. Areas established tion of the Continental Shelf, 15 U,S.T.
under this concept are for the preserva- 74, TIAS 5578, of other coastal waters
tion, protection and management of where the tide ebbs and flows, of the
essential or specialized habitats repre- Great Lakes and their connecting waters,
sentative of important marine systems. for the purpose of preserving, restoring
Management emphasis will be toward or enhancing such areas for their con-
preservation. The quantity and type' of servation, recreational, ecological, re-
public use will be limited and controlled search, or esthetic values.
to protect the values for which the area (c) The term "multiple use" as used
was created. in this section shall mean, the contemrn-
(b) Species areas. Areas established poraneous utilization of an area or re-
under this concept are for conservation source for a variety of compatible pur-
of genetic resources. Management em- poses to the primary purpose so as to
phasis may be to maintain species, popu- provide more than one benefit. The term
lations and communities for restocking implies the long-term, continued uses of
other areas and for reestablishment pur- such resources in such adfashion that one
poses in the future. The result will be a will not interfere with diminish, or pre.
contribution to the goal stated by the ven other permitted uses. th
Council on Environmental Quality, that (d) Ocean waters' means those
is, "the widest possible diversity of and waters of the open seas leIng seaward of
within species should be maintained for the baseline from which:the territorial
ecological stability of the biosphere and sea is measured, as provided for in the
for use as natural resources, The orien- Conventon of the Te-rtorial Sea and
tation envisaged will be toward species the Contiguous Zone, 15 U.S.T. 1606,
preservation by protection of such areas TIAS 5639,
as migratory pathways, spawning (e) "Person" means any private indi-
grounds, nursery grounds, and the con- vidual, partnership, corporation, or other
straints on these areas will be those entity; or any officer, employee, agent,
necessary to achieve these purposes. department, agency or Instrumentality
(c) Research areas. (1) Areas estab- of the Federal government, or any
lished under this concept will exist for state or local unit of government.
scientific research and education in sup- (f) "Secretary" means the Secretary
port of management programs carried
out for the purpose of the title.
(2) The purpose of the research areas � 922.30 Penalties.
is to establish ecological baselines Any person subject to the jurisdiction
against wlich. to compare and predict of the United States Who violates any
the effect on man's activities, and to regulation issued pursuasnt to this title
develop an understanding of natural will be liable to a civil penalty of not
processes. Research areas will be chosen more than $50,000 for each such viola-
according to the biota they support, to tion, to be assessed by theAdministrator.
include representative samples of the Each day of a continuing violation will
significant ecosystems in the nation, and constitute a separate violation. No pen-
to the history of prior research carried alty will be assessed under this section
out in the area, and its proximity or until the person charged has been given
availability to potential uses marine' notice and an opportunity to be heard.
sanctuary designation will insure that Upon failure of the offending party to
the area will be relatively unaffected for pay an assessed penalty, the Attorney
a long period of' ime, thus adding a General, at the request of the Adminis-
measure of stability to a research pro- trator, will commence action in-the ap-
gram and the value of the data in man- propriate district court of the United
agement decisions. States in order to collect the penalty and
(d) Recreational and esthetic areas. to seek such other relief as may be ap-
Areas established under this concept will propriate. A vessel used in the violation
be based on esthetic or recreational of a regulation issued pursuant to this
value. , title will be liable in rem for any civil
(e) Unique areas. Areas established penalty assessed for such violation and
under this concept will be to protect may be proceeded against in any district
unique or nearly one of a kind geologi- court of the United States having juris-
cal, oceanographic, or living resource diction thereof. The district courts of the
feature. United States will have Jurisdiction to
922.11 Defi*nitions. restrain a violation of the regulations
issued pursuant to this title, and to grant
As used in this part, the following such other relief as may be appropriate.
terms shall have the meaning indicated Actions will be brought by the Attorney
below: General in the name of the United States,
(a) "Administrator" means the Ad- either on his own initiative or at the re-
ministrator of the National Oceanic and quest of the Administrator.
Atmospheric Administration.
(b) "Marine sanctuary" means those
areas of the ocean waters, as far sea-

117

B. The Corps of Engineers' C ivilW orks Activities.

The Army Corps of Engineers is a major figure in the
development of the coastal area. Congress created the
Corps in 1802 to construct and maintain coastal defenses.1
Gradually the Corps' responsibilities changed from providing
defense to improving navigation.2 After the Civil War,
several Rivers and Harbors Acts were passed which collectively
established the Corps' "responsibility for investigation,
construction, operation, and maintenance of civil works
projects for navigation, flood control, and related purposes
including shore protection."3
In the coastal zone, the Corps of Engineers' activities
encompass navigational improvements and preservation of
beach areas.4 Typical projects include dredging of channels
and harbors, construction of jetties and dikes, and main-
tenance of these works. Prior to undertaking a project, the
Corps will run a need and economic analysis to determine the
feasibility of the endeavor.5 Federal funding is granted by
general legislation which also authorizes the projects. 33
U.S.C. 5�540 et seq. (1970). Yet, if the project is large,
specific authorization by Congress is necessary and local
contributions may be required.6
--The federal government also provides assistance for the
construction of projects to aid in the prevention of beach
erosion resulting from tidal and current action in the coastal
areas. 33 U.S.C. �426 (1970). The federal contribution
from these projects can range up to 50% and, in some situ-
ations, 70% of the costs, the rest to be borne by the state
or other local municipalities. �426(e). Subject to certain
conditions, the Secretary of the Army may also undertake
small projects not specifically authorized by Congress. �426(g).
Prior to the recent concern over environmental resources,
the Corps of Engineers gave little thought to the impact of
their activities on the environment. Yet, with the enactment
of the National Environmental Protection Act of 1969 (NEPA),
42 U.S.C. ��4321 et seq. (1970), the Corps developed an environ-

1. Environmental Law Institutue, Federal Environmental
Law (Dolgin & Guilbert, eds. 1974) at 796.

2. Id.

3. Id. at 797.

4. Id.

5. Id.

6. Id.

118

mental conscience. The major thrust of NEPA which affects
the Corps of Engineers concerns the requirement of an en-
vironmental impact statement (EIS) as a prerequisite to any
major federal action having a significant environmental
effect. For its own civil works activities the Corps will
prepare impact statements for: (1) reports to Congress
concerning proposals for legislation affecting Corps of
Engineers' programs; (2) proposals for the Corps' authori-
zation for projects under continuing authorities; (3)
initiation or construction of funded projects not yet be-
gun which will significantly affect the human environment;
(4) budget requests for funds to build projects or acquire
land; (5) projects in continuing construction, land ac-
quisition, or maintenance and operation status which have
not previously had statements made and statements for which
are to be made within three years subject to a schedule of
priorities.7 Completed projects turned over to local
interests and infrequent maintenance work are specifically
excluded.8 Although the EIS requirement aids in environ-
mental protection, it often provides a basis for legal action
against the Corps.

7. 33 C.F.R. �209.410(e) (1976).

8. 33 C.F.R. �209.410(e) (6) (b) (iii) (1976).

119

SAVE CRYSTAL BEACH ASSOCIATION v. CALTCVMY

8 ERC 1641 (1975)

Hodges. 1 ~~~~~~~~~~~7. 'The W~est Coast Inland Navigatwio
'The Intracoastal Water-way along the District (W(INi)) is a multi-c'OuntVia taing
west coast of Florid a, from the district created by the State of Fl'rida t
Caloosahatchee River on the south (Fort co-operate with the Corps in securinge real
Myers;), to the Anclote River on the north estate necessary for maintenance o)f thre
(Tarpon Springs). is maintained hv the U.S. waterway and by contributing funds to
Army Corps of Lnginteers, defray tile costs.
Plaintiffs, an unincorporated association 8. The Corps requested NVCANl) in
ol' citizens, filed this action on At-ryust 14. Novemtber, 1971 to assisi in locating a
1974, to enjoin the Defendicants fromn suitable disposal site fatr thle dredging of St.
proceeding with a maintenance dredging Joseph's Sound.
projec:t itiolving a port ion of thle in-
tracottstal Waterway in St. Jose pIh's Sound,....
Pinellas County, Florida, Under the ICrstlBah ndnohrlird
propeisal sought to be enjoined, the spoil or site kno1wnl as Mediterrane~an MAnor1 wcre
material dredged from the Sound would be selected for1 fu-rther inivestigation arid a
deposited on a 64 acre upland site known as,"oudntoilte" a ett ~i~O
the Crystal Beach area of Pinellas County cst irate ian federal waecis requstn c0 11COttI-
where the Plaintiffs reside. mnents regarding those two sites. A co-or-
Plaintiffs' principal claim was that the diwtmion letter ts scot to other agc-rrcies to
project could not be implemented absent gaint thei re aid awl assistance in precparing anr
ipreparation of an environmental impact environntental impact statemntit, or iii
statemnentt pursuant to the requirements of det erm inin,, whet I ir ;it tnivort nwt' n teitaIi an-
the National Environmental Policy Act piact statemnent is required.
(NEPA), 42 USCA 44321, el seql.1.WIN')aqieeaettsrte
I'indings (if J'Od ~~~~~~Crystal Beach site but was unable. to Ircquire
1. T1he U.S.. Army Corps of Engineers easements for %lediter'rancan Manor, arid
(the Corps) is tesponsihle for cotstr1-LCrting einther investigation was condor ted to
and maintaining t Ite lot ra coOst a I lcatc additlortal disposal areas. Additiour~d
Wvaterway. 33 U.-S.C �540; Act of March 2. land at hei Crystal Beach site wasOne offlive
1945, ch.'19, �2, 59 Stat. 17; Act of Sept. 3, alternsatives c(crrsidered but ito further con-
1954, flub. L. Nor. 780, � 10)5 68 Stat. 1255. sideratiots was given Honeymoon Islartd
2. 'The Intracoastal 'rasterw cv along the 13. Tlhe (Crystal Beach site was again
XWest Coast of' Florida includes Sm. Joseph's selectc'd arid expanded to inclirde Laker
Sound within tire sectiron Ic )tween the Chatauqura fand strrrounin~hg land previous-
(:alcosahiatchee River (F art Mfyers) and the iy plattced as a subdivision.
Anclote River (Tarpon Springs). 14. Another co-ordination letter cil thre
3. It is the- policy of the Corps to prepare tproject was disseminated on September 12,
a "conlpcsite" environmental impact state- 1973, and eight agencies submitted comat-
ment for navigation projects involving con- ts
tinuing maintenance over a large area. SLoch mens
acomposite statem ent forms h, ai ao 15. The Corps prepared an environimen-
nient for future projects and preparation of' tal assessment of the project on October 25,
new or updated "assessonents." ~~1973, and made tile determination that arn
new or uoposited a s tatementsfo environniental impact statement was not
maintenance of the Intracoastal Waterwvay rqued
front Caloosahamchee to Anclome is rtow in 16. WCIND. acqui red new easements for
dratft form and in the process cif beitg the Crystal Beach site, including tire ad.
finalized, but has not yet been applroved norl ditional land, and conveyed them to the
adopted b ieCorps United State, in February, 1974, together
by t~~~~~i~~~ 't V ~~~~with a contribution of $301,000 of its funds.
5. Tlhe composite statement treats thle InI-
tracoristal Waterway in five reaches or' 18. 'No' re~quests for' pmublic hearings were
segments, cone of which includes Sm..Joseph's aepirtteNctetot'ed;h,
Sound; however, it does not relate to any suhdeqnty prlaitiff pr otesedtie Lito Poced l
it~~tm'tieuiar dredging project. (.~~rvstal Becich its a spoil dlisposarl site bc'lore:
0. The C orps surveyed St. 'Joseprh's WCIND) and the Corps.
Sr iind in Jur~, 1 97 1 andl diisicoveredl 1htIt
shoaling h~ad reduced the lproject dejitl of' 19. Ani cmecnsiori was nvgintiated with
nirte feet toj five feet in a 3.4 mile reach of the, 1 letdry Corpiorationt intil Aurgust Ii), I 97-i,
lthtnmtl. H owever, this (:toncit ion was not alld I pt Iiblic (hearing held tin Cieaitvaier,
at td is trot such a threat or caltrgc'r to cocm- Flli , ircl ,r I rirrle 1 7, 1974, regardic itg the(
niercial navigation or other' interests as to be p o e t
regarded as'an emnergency by the Corps. .2(1. lOI'oilcr l i thc' hearing thre ("om's
.~~~~.. - r ~~~~~~~~e-m'xarritr ii'cI li)roje.ct anrd tnocilied tli

1:20

slpoil disposal plan. Use of existing spoil 4. A threshhold decision by a Federal
islands was reconsidered and found to be agency that no environmental impact state-
unaccepltable. A revised plan was for- ment is required by NEPA with respect to a
tuiilated by the Corps on July 18. 1974, contemplated project is subject to judicial
which eliminated the use of Lake C:hatau- review under a relaxed standard of
quia and ()hlden Bayou, and made changes "reasonableness" rather tian the "narrower
in die (like splcifications. standard of arbitrariness or capriciousltess."
21. A co-ordination letter explaining the Save ()fOr 7et Acres vs. KreIer, 472 F.2d 463,
cntirc, nioliied project was mailed on July 465 (4 ERC 19411 (5th Cir. 1973).
22, 1974. 5. In this instance there is little or no dis-
22. (n July 31, 1974, the Corps reviewed pute, and the Court concludes, that the
the environmrental impact of the revised proposed project in St. Joseph's Sound and
proie' t and a supplemental assessment was Crystal Beach is a "major' Fecleral a.( ion
malc. 'Ihe Corps again concluded that an involving, as it does, a cost in excess of ,ne
nciriionmental impact statement was not million dollars. Thus, the ultimate issue is
required. whether it was "reasonable" for the Corps
23.' The Corps notified the Save Crystal to conclude that the pr6ject (as modified)
Beach Association on August 2. 1974, that would have no significant affect upon the
the project would proceed on August 20. quality of tie human environment.
2-4. The significance of the environmental 6. In reviewing the reasonableness of
afficct of any proposed dredge-and-fill pro- such a decision, however, the Court should
jecl is relative and difficult to quantify. evaluate not only the project's direct affect
However, there is substantial evidence that upon the various aspects of the environment,
the Crystal Beach site as a whole is a small but should also consider the other factors
but ilnportant esluarine area along the West which would be included in a NEPA state-
Coast of, Florida; and that, as more and ment if one were prepared - notably, alter-
more of such areas have been filledl in recent natives to the project or alternative means of
years, the.ecological value of the remainder accomplishing the project. Indeed, the
has been enhanced. Court should weigh the totality of tile cir-
25. The project in issue is a maintenance cumstances involved in each case as tilhe
dredging operation which must be repeated Federal agency itself will have (or should
every five years, approximately, in order to have) done. (f. Hiram Clarke Civic Club vs.
remove natural shoaling and maintain the Lynn, 476 F.2d 421 [5 ERC 1177] (5th Cil.
desired channel depth. 1973); Hanly v. Kleindienst, 471 F.2d 823, 835
[4 ERC 1785] (2d Cir. 1972). This is par-
Ctonclusions of Le, ticularlv true in view of the lack of precise
1. This Court has jurisdiction of the par- standards by which- to measure, and the
ties and the subject matter. 5 USCA resultant difficulty in quantifying. the
��701-706; 28 USCA ��1331(a), 1361, "significance" of the environmental affect of
2201-2202; and 42 USCA �4321, et seq. many Federal undertakings.
2. The. National Environmental Policy 7. Approaching this case in that manner,
Act (NEPA), 42 USCA �4321, el seq., the Court has concluded that the Corps'
applies to major Federal actions significant- decision to omit an environmental impact
ly affecting the quality of the human en- statement in this instance was unreasonable
vironment. It requires the preparation of a for the Following reasons taken as a whole:
detailed "environmental impact statement" (a) no real consideration was given to the
identifying and discussing the environmen- possible use of Honeymoon Island as an
tal impact of the proposal; the adverse en- alternative if not a preferable disposal site
vironmental effects which cannot be avoided (b)atherchannel if .n t Joseph's Soundsis oni;
if the proposal is iniplemented; alternatives a ()rtion or segment of the ilhtoacdastal
a portion or segment of the Intracoastal
to the proposed action; the relationship Waterway with respect to which an tIS is
between short term uses of the environment being prepared and could safely be awaited,
and the maintenance and enhancement Of given the nof-erergency nature of the
long term productivity; and any irreversible shoaling here involved; and (c) the use :of
commitment of environmental resources if Crystal Beach will permanently and
the project is implemented. 42 USCA significantly affect an area of environmental
�4332(c). importance but without long-range return of
3. NEPA has been appropriately describ- value to the Intracoastal Waterway in the
ed as an "environmental full disclosure sense that the site will accommodate only
law," and its requirements are more the, spoil from the present maintenance
procedural than substantive in nature. That dredging project: Still other sites will be
is, its objective is to insure that Federal needed in the future because maintenance
decision-makers give full consideration to all dredging in the channel is an ongoing,
environmental ramifications before resolv- periodic requirement.
ing to go forward with "major Federal ac-
tions," but NEPA. does not purport to 8. With respect to Honeymoon Island,
prohibit any given project or type of project the C0orps itself apparently recognized at the
as such. Sec Iowao (.'ilietns for Entirotrnienlal outset that it would be a likely disposal area
Quatlil, v. ['Vrlpc, 487 F.2cl 849.851 (8th Cir. but rejected the idea out-of-hand merely
19173):, Scenic Iluednr2 Alesetvaliunz (,onfereince v. because the Corps was already in litigation
Federal It,uaer b(onmissiorn, 453 l:.2d 463, 481 with the owner who was, in fact, seeking a
[3 EI3R: 12321 (2d. Cir. 1971). I.ermit to continue his dredge-and-fill

121

operations on the island. The visit to the respect to maintenance dredging in a small
island by Corps representatives in February, portion of the channel. This case does not
1972, can hardly be regarded as a genuine require that determination. Rather, the ex-
investigation of the location as a potential istence of the rule against segmentation and
spoil disposal site since an adverse the fact that, at the present time, an overall
recommendation had already been made in EIS i., in preparationl, is merely one of the
Janulary, primarily because of the litigation factors the Coulrt has considered in assessing
(Plaintiffs' Exhibit 1); and that recommen- the reasonableness of the Corps' decision
dation was ultimately accepted on the not to prepare a NEPA statement erl-
grounds stated (see Plaintiffs' Exhibit 10 bracing St. Joseph's Sound and C:rystal
and the affidavit of Col. Lee in opposition to Beach.
the application for a preliminary injunc-
* �~~~~~~~~~~~.tion.) ~~~I. Finailly, some weight must be givenrl to
e fact th at e fat t ilt e usof the Crystal Beiech site
9. With respect to the pending prepara- will resulr in pi'rnlanent and adverse alter;l-
tion of an overall EIS concerning the in- tion of important estuarine terrain. 'Ihe
tracoastal Waterway as a whole (froin' degree or significance of that alteration fi'on
Caloosahatchee to Anclote), it is established an environnlental standpoint is hotly coll-
that a Federal agency may not divide a ma- tested. It is not disputed, however, that
jor project into separate units and evaluate while the alfect on Crystal Beach ,will he
each segment individually in determining permanent and irreversible, the project is of
whether NEPA requires an EIS as to that short-term benefit to the Watervway alnd will
unit or phase. .anmed Individual Members of yield no long-term advantage be.ause (a)
San .1ntonio Consvervation Society vs. Texas additional maintenance dredging will be
Highway Dept., 446 F.2d 1013 [2 ERC 18711 required in approximately fivec ears; and
(5th Cir. 1971). While' a separately (b) another site will be necessary al that
authorized and funded project is not a seg- time since the Crystal Beach disposal area
merit in this context merely because it is in- will accommodate only the spoil from the in-
legrated with another larger project (Sierra stant project. This is important because
(.'lub v. (.dllaoay 499 F.2d 982 987 [6 ERC irreversible c:ommitmenits and the
20801 (5th Cir. 1974)), the St. Joseph's relationship between short-term) uses 'ailld
Sound protjec is not separately authorized . longsterm productivily are two of the factors
and funded. It is part of a lump sum ap- expressly enuminerated in the statute as es-
propiaition for maintenance (g..g., P. L sential elenents in the preparation of an
93-3(3, 93rd. Coing., 2d Sessioi). 'i'ls is not EIS. 42 USC(A �4332C)(ivs) and (v).
io say. howvcve., that the entire Intracoastal 11. For all pf tliesereaso6s the Court con-
Waterway should be regarded as Ihe single eludes that the .Corps',,decision not to
project wheieverl a de(ision is to he made prepare an EIS in this: case was un-
concerning thl plreparatlion of all EIS with reasonable, and the Plaintiffs are entitled to
a permalelnt injunction.-.

Federal requirements aside, the question has arisen
whether civil works projects of the Corps of Engineers are
subject to state environmental quality control regulations.
The following case deals with this question and also il-
lustrates potential federal/state conflicts in the regu-
lation of navigational development.

122

STATE OF MINNESOTA, BY SPANNAUS v. HOFFMAN

United States Court of Appeals, Eighth Circuit 1976
543 F.2d 1198

TALBOT SMITH, Senior District- Judge. of 1972, their objective being "to restore,
The case before us' is one of first and maintain the chemical, physical, anld
impression and involves the dredging opera- biological integrity of the Nation's
tions of the Army Corps of Engineers. The waters."
various procedural arguments made below Although the Amendments retained the
have not been pluged on appeal. The is- basic policy placing primary responsibility
sue, the parties are agreed, is the authority for the control of water pollution in the
of the State of Minnesota under the Feder- states, two major changes were made.
al Water Pollution Control Act Amend- The first imposes direct restrictions on dis-.
ments of 1972 (hereafter "the Amencd charges of pollutants, phrased in terms of
ments"), 86 Stat. 816, 33 U.S.C. � 1251 et "effluent limitations" on "point sources,"
seq. (Supp. IV), to regulate the Corps of thus making it unnecessary, as had been the.
Engineers of the United States Army, in case theretofore, to work backwards from a
the' Corps' conduct of dredging operations polluted body of water to determine the
in the navigable waters I of the United point source of the pollution. .The second
States, within Minnesota. ,The District major, change was the establishment of thb
Court, writing before the recent interpreta- National Pollutant Discharge Elimination
tion of the 1972 Amendments by the Su- System (NPDES) for the purpose of at--
preme Court in EPA v. California ex rel. taining and enforcing the effluent limita-.
State Water Resources Control Board, - tions.
U.S. --, 96 S.Ct. 2022, 48 L.Ed.2d 578 The Bill of Complaint alleged that the
(1976), held that � 402(b) of the Amdnd- Corps of Engineers, for the ourpose of aid-
ments, 33 U.S.C. � 1342(b) (Supp. IV), es- ing commercia l'i naiv g maintaigi a
tablishing the National Polluta'nt Discharge navigation channel in the. Mssissippi River,
Elimination System (hereafter "NPD7ESS') various harbors on -Lake'.Superiori and a
"grants to Minnesota authority to require;;> harbor on Lake of the Woods by its dredg-
defendants to comply with state pollutri'n .i ing operations. These dredging operations
abatement requirements including obtain- are alleged to have caused deterioration in
ing a state discharge permit." Minneaot I water quality. Both fedei.al lawand state
Spannaus v. Callaway, 401 F.Supp. 524A ': law were relied uplon a violations of both
(D).Minn.1975). We'reverse and r4mana d zv; were alleged. The relief requested was a
the entry of judgment in accordance h; : declaratory judgment that .th -"applicable
with. X- :. ' federal law requires th':O'edging activity
'The originaI Fedel l Water Polluti, . of the defendants to. be caredout within
Control Act was passed in 1948, frequently,: the ambit of state. lawsb ao dregulations,".
revised, and codified at 33 U.S.C. � 1151!.t and that the dredging activities of the de-
seq. It. proved to be inadequate. The re- fendants within the State of Minnesota. "be
suit was the enactment of the Amendments conducted in accordance with'the Minnesota
Statutes and Regulations regarding water
I. .The term, "navigable waters," as here used quality."'
means "the waters of the United States, includ- First, the District Court's conclusion
ing the territorial seas." Amendments that the Corps is required to obtain di$-
� 502(7),.33 U.S.C. � 1362(7) (Supp. IV). That
the Congress intended to extend the Act's juris-
diction to the constitutional limit is clear from cannot be maintained, in light of State
the Conference Committee report, S.Rep.No. Water Resources Control Board, supra. In,
92--1236, 92d Cong., 2d Sess. 144 (1972), U.S.
Code Cong. & Admin.News 1972, p. 3776 in 1 State Water Resources Control BoIrd, the
Legislative History of the Water-Pollution Con- Supreme Court held that agencies of the
trol Act Amendments of 1972 (compiled for the federal government do not need to obtain
Senate Comm. on Public Works by the Library
of Congress), Ser. No. 93-1 at 327 (1973) (here-
after "Leg,Hist.").

123

NPDES discharge permits from the states. Exeptas ex r poded i this Act,
We turn now to the major question posed nothing. in this::'ACsVial , (1) preclude- or'
,by this case. In support of its argument :deny the. right ofa;iny State Sor political'
that the Corps is required to conform to the subdivision thereof. or interstate- agency
State's water quality standards and ef- to adopt or enforce (A) any standard or
fluent limitations, Minnesota relies'primari- limitation respecting. discharges of pollu-
ly upon two sections of the Amendments, ntants, or (B) any. requirenient respecting
� 313, 33 U.S.C. � -1323 (Supp. IV), and control or. abatement- of pollution;
� 510, 33 U.S.C. � 1370 (Supp. IV). The * * * .
former, � 313, requires that: . The Corps, per con'tra;raises a basic con-
-Each department, agency, or instru- stitutional. issue, .as'seting that the :Su-
mentality of the executive, legislative, .'pfemacy Clause of thi- e.nited States Con-
and judicial branches of the Federal stitution (Art. VI, Cl.2>, absent Congres-
Government (1) having jurisdiction over sional authorization,' bars state iegulation
any property or facility, or (2) engaged in of. its dredging operations,-which are per-
any activity resulting, or which may re- formed in the navigable waters of the Unit-
suit, in the discharge or runoff of pollu- ed States to maintain navigation, and that
tants shall comply with Federal, State, Congress has nowhere in the 1972 Amend-
interstate, and local requirements re- ments. authorized such- state regulation.
specting control and abatement of pollu- Per contra, it urges . that � 404 of the
tion to the same extent that any person is Amendments, 33 U.S.C; � 1344 (Supp. IV),
subject to such requirements, including creates an exclusive program for dredged or
the payment of reasonable -service fill material, including dredged spoil. Un-
charges. * der this section, it is argued, the sole and
This provision of the Amendments, it is exclusive responsibility'for the administra-
This p rovtision of the program.U vgend in the iSecre-
arjued, "clearly and explicitly requires Fed-
eral entities to comply with State require- tary of the Army, acting' through the Chief
ments respecting the control and abatement of .ngineers, and no provision is found
of pollution." In addition, in support of its therein for administration by thA EPA or
position, the State urges to us the require- by any state..
ments of � 510, 33 U.S.C. � 1370 (Supp. IV), At the..heart of the controversy, then, is
providing, in part, that: the basic question of the existence and ex-.
tent, if any, of-thei:'ithirity of t hPei
p'urportedly embodiea,.irincipally in � .13,
9. There are actually two Minnesota permit pro- 33 U.S.C. � 1323 (Supp. IV), and � 510, 83
grams involved in this case. The first, estab- U.S.C. � 1370 (SuppX I V);lover the Corps -of
lished under Minn.Stat. � 115.03 subds. I(e) & for the
5 (1974), is the Minnesota NPDES program,
which � 402(b) of the Amendments, 33 U.S.C. purpose of aiding-pmUircial navigation, in
� 1342(b) (Supp. IV), authorizes. Minnesota's the light of the hereitore cited provisions
NPDES program has been approved by EPA, relied upon by the orps,-principally �� 402,
see 39 Fed.Reg. 2606 (July 16, 1974). The
second, the Minnesota Disposal System, Minn. 33 U.S.C. � 1342 (SuPp. IV) and 404, 39
Stat. � 115.07, is an independent state permit U.S.C. � 1344 (Supp, IV).
program, not authorized by federal law, and
not submitted to EPA for approval. As a mat- [At this point the court dis-
ter of practice, Minnesota issues one permit to cusses the legislative his-
water polluters, designated as both a Minneso-
ta Disposal System permit and a Minnesota tory of the Act, finding no
NPDES permit.
While compliance by federal agencies with
independent state permit programs was not
directly at issue in State Water Resources Con-
trol Board, supra, the rationale for that deci- respect to state administered NP'DES permit
sion leads, a fortiori, to the conclusion that the programs. Unlilce stare NPDES permit pro-
Corps need not obtain such permits. The grams, the Minnesota Disposal system is not
Court's rationale in State Water Resources authorized by Congress, hence the case for
Control Board was that there had not been a finding a waiver of federal immunity is much
clear and unequivocal waiver, by Congress, of weaker with respect to it than with respect to
federal immunity from state regulation with state NPDES programs.

124

� 1171(a) (1970), by requiring federal agen-
intent to unreasonably impede cies to "comply with Federal, State, inter-
dredging activities neces- state, and local requirements respecting
sary for the maintenance of control and abatement of pollution to the
commerce. same extent that any person is subject to
The State of Minnesota is subject to such requirements * * "." There is
the authority of the United States Govern- no doubt that the prior law as to the duty
ment in the matter before 'us. We start of Federal facilities and activities to comply
with the with the requirements of pollution control
seminal principle of our law "that the laws has been strengthened but this
constitution and the laws made in pur- strengthening does not directly address the
sulla:le thereof are supreme; that they problem at hand: Whether Congress in-
control the constitution and laws of the tended to waive the immunity of the Corps
respective states and cannot be controlled of Engineers from state regulation of those
by them." McCulloch v. Maryland, 4 dredging activities of the Corps which are
Wheat. (17 U.S.) 316, 426, 4 L.Ed. 579, 606 essential for the maintenance of interstate
(1819), From this principle is. deduced commerce. Nor is there any indication in
the corollary that the legislative history of � 313 that Con-
igress intended to subject .the disposal of
"ilt is the very essence of supremacy
dredged material by the Corps to'state law.
to remove all obstacles to its action .
within its own sphere, and so to modify -Section 313 constitutes a general au-
every power vested in .subordina.te .thorization on the part of Congress, that
governments, as to exempt its own op- "[clach agency . of the
eration from.their own influence." Id(., Federal Government . .* shall com-
at 427, 4 L.Ed., at 606.
ply with Federal, State, interstate, and local
The effect of this corollary, which derives requirements respecting control and abate-
frcm the Supremacy. Clause and is exem- ment of pollution." Minnesota urges that
plified in the Plenary Powers Clause giv- the words are clear and unambiguous and
ing Congress exclusive legislative author- hence there is no need to look at the logisla-
ity over federal enclaves purchased with tive history or other sections of the Amend-
the consent of a State, is "that the activi- ments. We have seen, however, only
ties of the Federal Government are. free recently, that � 313 is to be construed in the
from regulation by any state.'!. . *Be- light of the Congressional intent with re-
cause of the fundamental importance of spect thereto. State Water Resources Con-
the prullciPe shielding federal installa- trol Board, supra. The problem arises from
tions and aictivities' from regulation ji: jY the fact that words do not construe them-
the States, an authorization of state reg-
selves.
ulation is found'only when and. to the, selves.
extent-' there is '"a clear congressional It would be anomalous to close our
mandate,'" "specific congressional action" minds to persuasive evidence of intention
that makes this, authorization of state on the ground that reasonable men could
regulation "clear land -unambiguous." not differ as to the meaning of the words.
Henceokay. TrainS -.: . G Legislative materials may be without
Hancock- T. Tpain'. 1-:- U. I--: , 96
probative value, or contradictory, or am-
S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976) (foot- probative value, or cntradictory, or am-
notes omitted'and emphasis added). biguous, it is true, and in such cases will
not be permitted to control the customary
With these considerations and the Con- meaning of words or overcome rules of
fressional debates in mind,-we look to t~he syntax or construction found by experi-
principal arguments relied' upon by. the ence to be workable; they can scarcely be
State, nanmely �� 313, 33 U.S.C. .� 1323 deemed to be incompetent or irrelevant.
(Supp. IV), and 510, 33 U.S,C. � 1370 (Supp. (Citation omitted.) The meaning to be
IV), of~ the 'Amendments. . . ascribed to an Act of Congress can only
Minnesota seeks to find support for its be derived from a considered weighing of
position by virtue of the fact that Congress, every relevant aid to construction.
in � 313, removed an asserted ambiguity in .nited States v. Dickers 1 U.S. 554,
the prior law, � 21(a) of the Water Quality 562, 60 S.Ct. 1034, 1038, 84 L.Ed. 1356 (1940)
Improvement Act of 1970, 33 U.S.C. (Murphy, J.) (footnote omitted).

125

Moreover, a statute ,wil not -be The regulations controlling the Corps, in
read literally if such a reading leads t turn, require the' Corpsto consider the envi-
result that conflicts with Congress' intent. rpnmental, as well as thesocial and econom-
ic consequences of its. eivil projects.' It
Thus, what is asserted to be the literal appears also: that the' Corps is currently
meaning of � 313 must b'e interpreted to conductingp a study of the'environmental
give effect to the intent of Congress that effects of the disposal of dredged
the Corps is not to be hampered in mains-- material, which, we are also told, is being
taining navigation. What we are herec:;. applied in implementing � 404, 33 U.S.C.
dealing with is a specific agency, the Corp~s � 1344 (Supp. IV), to assure that all dis-
of Engineers, performing a specific federal" charges of dredged material result in the
function, the clearing of the channels of
interstate commerce for purposes of riaviga-
tion,. its responsibility being delineated in In light of the principles we have
a special section of the Act, � 404, 33 U.S.C. discussed, the Supremacy Clause, the legis-
� 1344 (Supp. IY): Unlike all other pollu- lative history of the Act, as well as its
tants, dredged spoil is not regulated under internal structure, we find with respect to
the NPIDES, $ 402, 33 U.S,.C. � 1342 (Supp. the disposal of dredged material by the
IV), since � 402(a)(1) establishing the Corps, that there is insufficient evidence to
ITNPDES begins, as we have seen, with the meet the clear and unequivocal standard for
words, "[e]xcept as:provided in sections 318 finding Congressional authorization for
and 404," . . state regulation under., the teachings of
With respect to. � 510, 33 U.S.C. Hancock, supra, and State Water Resources
� 1370 (Supp. IV), quoted supra at p. 1202, Control Board, supra, whether by authoriza-
Minnesota asserts that "[tlhis unequivocal tionr under the NPDES or independently
language was passed in direct :response to thereof. -Although environmental consider-
clAims such as t6i6 Corps is making in this etioia"eieatteriof i oaeri'tlie
case.": A eareful reading of ,� 5i0, hoiv- Congress, and obviously. d- to both the Ent-
ever, makes it clear that this section does vironmental Protection Adi iiislration. and
not purport to grant the states any new the Secretary of the' Army, as appears'
authority. By its terms, � 510 is designed' clearly from their respective guidelines and -
only to prevent the Amendments from regulations, the overriding eoncern of the
"preclud[ing] or deny[ing] the right of any Congress in this context :was for the main-
State * * * to adopt or enforce" pollu- tenance of unimpeded trafit in'ithe naviga-
tion control requirements. Thus it prevents. ble waters of the United-States. Regula-
the Amendments from pre-empting the tion by the various Sta~ts?0of the Union,'
states from adopting higher pollution con- each with its own requirements, could re-
trol standards than those established under suit in a conceivably; chaoti� situation as
the Amendments. The Corps does not, riverborne traffic moved from the'bounda-
argue pre-emption. Section 510 does not ries of one state to those of another. We
address the issue of state control over the find no authorization of such. state regula-
Corps' dredging essential for the purpose of tion in the legislative history, of the Act or
maintaining navigation. its several sections. We hold that the Con-
There is a suggestion by amici that fail-nd auorin t
ure to impose upon the Corps of Engineers
the requirements of state water pollution State control.:
control may result in action by the Secre-, Reversed and remanded for entry of
tary of the- Ariy inimical to proper envi- judgment in accordance herewith.
ronmental considerations. The Act is not
so 'construed 'by -the Army and the EPA.-
Both the EPA guidelines and the Army's
regulations .bteardireqtly on this' point.
Under the guidelines, evaluation criteria,
expressly miadeiappilicable: to, the Corps 'of
Engineers, a're-deve'l6ped for all proposed
discharges of dredged o0 fill: material.

126

SECTION 23 REGULATORY ACTIVITIES

A. The Army Corps of Engineers.

i. �10 of the Rivers and Harbors Act of 1899

In addition to its own civil works activities, the Army
C,.rps of Engineers also regulates the activities of other
parties in the coastal areas. The Corps derives its power
from Congress which has the power to "regulate commerce with
foreign nations, and among the several states." U.S. Const.
art. I, �8, cl. 3. Although control over navigable waters is
not specifically granted by the Constitution, the judiciary,
in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), found that
the power to regulate commerce includes the power to regulate
navigation. Through various congressional acts, the Corps
has been delegated this power to maintain the navigability
of the waters of the United States.
The Corps' regulatory activities primarily consist of
issuing and enforcing permits for certain activities which
are undertaken in the coastal regions. One of the oldest
pieces of legislation authorizing permit issuance is the
Rivers and Harbors Act of 1899, 33 U.S.C. ��401 et seq.
(1970). Enacted to protect navigation, the Act, in �10, es-
sentially gives the Chief of Engineers the power to grant per-
mits for the building of wharves, piers, etc. and dredging
and filling in navigable waters. A primary problem con-
cerning this power is the extent of the Corps' jurisdiction or
rather the extent of "navigable waters." Originally,
navigability-in-fact controlled the exercise of the Corps'
authority. Nevertheless, as illustrated by the following
cases, navigability-in-law has become the crucial test.

127

UNITED STAPTES v. JOSEPH G. MREIMTI, INC.

United States Court of Appeals, Fifth Circuit 1973

478 P. 2d 418

JOHN R. BROWN, Chief Judge: coinplct~.- -' '-,nninistr~tivo notion
rt'oving agrain that legislative intent which conceivably could have the effect
fr~equenjtly comes to exceed even the of validating the work done, thus ren-
wildeust imiagination of those responsible dering the issues litigated moot.
for entactment, it is ironic that as a Mrtion ad tHme on
p~roduct of a laissez-faire, society, a 19th on Key Largo, one of the Florida Keys
Century aet is, now once again the effec- curving fingerlike for 120 miles into tile
tive too] in this decade's awak-ening Gulf of Mexico off the southern tip of
awareniess of the importance of man's Flor'ida. Hfispr-operty was locate-dabout
onviroitment. The Rivers and Harbors 11/m miles from Tavernier onl the Florida
Act of 1891) -. was It once the source Bay side of the Key. Taverniier ties to
of jurisdiction and the substanitive basis tesuho amrPit line
for the action of thle District Court. thin is i unaou th of Hmiler PointHame
ApPlYing � 10 of the Act 2 which for- P oint isfi trnc Harbout4r.issuh
bids the creation of obstructions in, or
al1ter-ation of the features of the navig~a-pr-
posed to dredge and fill the land into a
b~li waters, of the United States without network of land fingers and canals for
per-mission of the Secretary of the Army Use as a mobile home park. Moretti.
tile Court ordered Joseph G. Moretti, Jr. dcddt
to undo dredge and fill operations in- deiedt
volvig 400000 cbic yrds o eart, be-forego the prerequisite'imprimatur of
aosvinf 400,000lur cb c yrd obtaiarthe re- the Corps of Engineers before making
cause of ~~~~~~~~~~~his fiuet oban her-h proposed project a reality. Having,
quired permi~t, 331 F.Supp. 151. Despitepucae hilndn19, iotihd
the' fact tleat Moretti violated the Act prhsdhsln n1169 oet a
completed substantial work on his pt'oj-
flagrantly and our settled conviction ect when paid a fateful visit by two em-
that mandatory affirmative relief re- ployees of the Environmental Protection
quiring a burdensome performance is Agency in December of 197o.
statutorilyand equitably appropriate on Lee Purkerson and John Hlagen, the
these, facts, we modify and remand forEP emlyewr no on fica
2. Section 14) ~~~~~~~business at thel- time that they noticed
The (-reatioil (it lilly oleivut'tionnti th extensive work on the Moretti proj-
:affinitotively, autilorimel by ' algres." to ect. They took some pictures of the
the illivigthll ofipililil of, aify ,f tio. drag-line as it was removing soil fromt
watotrs of 1tit lTltint'd ,-thtics isi iroluiiiit- the underwater Ibortion of the Bay bot-
I a ol i uit ii hu iii Iawfolto )0 ii Itoni and addinag it to the shoreline I here-
orl (101111vl~ve thle linfildilig o iii nywhrt' NV1,-
]iiit, blitli oil1001, wvir, hruakwater, Evt'r* luit1-ill 1111,1 i'vIry voritlratiliil
hllkilead. jelty, or 01 oholr st rililt it )1 tI at ,ltoll v ulo tert an v of thu pro viii Io,
'lily port, riffldstefid, lotvll. ll) rhort, vtt- ,f steatiton- -41(0 40:, l itle 414 of thi 1ill,
nal, lifivigable irver, or- other Nvate r of tlii or Ialy rale or regulation m oule Ily fill
I 11 itoil Stat us, (40 sife establdi'lhed hiall- ertrofh ryinU'll tl'o
hor Ii UCS',or wit ore o hal ho 1 inux II; ~'the p rovixiotn., of seitifln 404 of this: 1itlI
iteeti es'tttbliillod(, ('Nutitlit) olli ilol slIalt hi0 ) li'Iiii gul)~lI tsioeul
tiellildet liv the Chief 41t E'llgill'i'rs',lial ti~l tt *oil volli,-ioll 010herof iduta b. IllIt
tattlhorizel] I )y lie S ev tr v of I ii riel by f tll, t"Illiciig$2i~
A rini, y : iai it shall tiot li lawfuol to lvs,,~ tliatl $`,00), or llyiv tnrii,4waiielt (iti
t'xefll~'ai (31' fill, ot' inl lly Illotatlet' 11 the iflit of a itattural iierson) not ox-
ttile it'tl~l, r(Aiy t f illy lt~',110 jllor, rmol uTetittg otlo yfear. ()' by hptit suel1 ]tillt-

siviiltttO hr itnliarbllxtlnial fit 11 IIlik )taifle tirhlentor illrts if x dsnt~itl of'e (lei I'llit.
of Ill Ilrl'l~kwatir l~r ot t lit' vlllll~lil lit VjAld tjltlivof till' oro i(illon iiv th 111-

(if hony',ii b y kwtl 'er 'e aof. of fill, Lca)]I'tl o' vtioll-tu riti (ifl ilti woix ist tit it, til't' At-i-

riitot to 11i51 imlilg thll VOUIH1)9'. i''ililg l t Ills ta111 111113' he illft iiItitI
"'iv fiutllor itt l1l,11o ity il- ftltiv i~ji llf 11itf'rt thill' l't-titil ofIl ttorny's.ll

128

by moving the shoreline and Moretti's DIistrict Offices of the Corpps in any case
property hayward. They could also see in which the application for construction
whelre channtl ls had been cut or deepened in navigable waters is "entirely routine
between the fingers. Moretti asked and * involvers] no difference
them what they were doing there, a of opinion * * nor any opposition
questionl which they turned back at him. or other considerations which should be
They asked him if he had a Corps of decided by higher authority." The.
Engineering permit and he said he did regulations specify that this grant is not
not. These facts were reported to the a delegation of the Secretary's discre-
Jacksonville office of the (Jorps of Engi- tionary powers. By � 209.120(c)(1)(iii)
nlleeo On December i0, 197,0, the Corps the Chief of Engineers has exercised this
(,rde.ced Moretti to (cease from further authority and commissioned Division and
s ork below the mean high water mark District Engineers with power to grant
because this was a violation of Federal permits in the name of the Secretary
law unless properly authorized by the where the matter is routine.
Secretary of the Arms .
The Corps' general policy for issuing
After one or two exchanges with the the permits require that it take into con-
Corps Moretti stopped working, a cessa- sideration and evaluate "all relevant fac-
tion which was to last for at least a few tors, including the effect of the proposed
months. As authorized' under Corps work on navigation, fish and wildlife,
regulations the Moretti Company applied- conservation, pollution, aesthetics, ecolo-
for an after-the-fact permit to dredge gy, and the general public interest
part of and fill part of Florida Bay." More specifically the Colrps
That is, he sought a permit which would
legitimize the work done and to be done. is required by its regulations, various
statutes, executive orders and an accord
Structure of te Act and eguations between the Secretary of the Jnterior
In addition to construction and main- and the Secretary of the Army to con-
tenance of flood-control and other im- a
tenance of flood-ontrol and other im- sider all applicable data including the
provements on the navigable waters of
views of other federal agencies and the
the United States, the Secretary of the views o ag
Army acting through the Corps of Engi- views and objections of state agencies
neers has been charged by Congress before granting a permit.
with administering the Rivers and Har- The watchword of the Corps' relation
bors Act of 18996, .. . with other federal agencies charged with
The Corps of Engineers-the eyes and protection of the environment is cooper-
ears, and sometimes hand of the Secre- ation. Besides its duty to cooperate and
tary--is headed by the Chief of Engi- collaborate the Corps is charged by exec-
neer.r who is charged by law with ad- utive order, as are all federal agencies,
vising the Secretary of the Army of the to improve water quality through pre-
propriety of issuing permits. The Corps vention control and abatement of wa-
itself is divided into 11 "divisions" ter pollution. In its attempt faithfully
which are in turn subdivided into 37 to carry out this responsibility the
"districts." As will be seen later, au- Corps has through formal regulations
thority to grant permits is in some cases established a policy, in cases where
delegated down to the level of the Dis- .dredging operations may cause pollution
trict Engineers. problems, of seeking the technical assist-
. .I .. ante of state and federal pollution con-
The Secretary has authorized the trol authorities and conditioing the
Chief of the Corps, at the latter's option,
granting of the permit on the establish-
to delegate authority to issue permits to
,ment of controls which will insure that
federal and state water pollution control
6. .. Tinm se'rtious of standards are met. This policy, and oth-
the startlng' is vl,,.tI. ,,. l- 1}, d(h ! t
l-. ,11'l:,1'slpi' to tlhict;ll, ls t tl',r St1' nt*4i'ui er statutorily required policies are sum-
-as lodified in 33 .1S.C:A; �� 401-426i. marized in a "memorandum of under-
Setioll () Of te oCriginal aet is o � 4(3 standing" between the Secretary of the
of 33 U'..C.A. This is lointed out for
Lno other reason than to save ihle rcader 1 Army and the Secretary of the Interior
the possible confusion whlichll ight be signed July 13, 1967.

129

The memorandum of understanding The regulations state flatly that
was drafted in recognition of the statu- "the public notice is mandatory, and no
tory responsibility of the Corps of En- permit or extention of time in which to
gineers and the Department of Interior complete work authorized by a permit
to interrelate their activities in the area will be granted unless notice has been is-
of water pollution control where damage sued and a reasonable time afforded for
to fish and wildlife is possible as well as a protest ' ." The period in
in recognition of the agencies responsi- which the permit is to be kept pending
bilities under Executive Order No. 11288 awaiting objections set at a minimum
as discussed above. The memorandumat a minimum
saes odiscussed abouven. The memorandum of ten days after issuance of notice.
sets forth procedures-given life in the Public hearings are
Corps of Engineers permit procedure, in- provided for whenever it appears that
fra-for carrying out these policies. there is sufficient public interest to jus-
These procedures provide that (i) tify such action and in case of doubt a
upon receipt of an application for dredg- public hearing is required .
ing or filing permits the District Engi- . ..- .Hearings, when
neer shall notify Regional Directors of held, are to be conducted in an informal
the Federal Water Pollution Control Ad- manner, presided over by the District
ministration, Fish and Wildlife Service, Engineer or his delegate with a full op-
National Park Service, and the appropri- portunity given each side to express
ate state agencies. (ii) The Regional their views. Formal adversary proceed-
Directors would immediately make such ings are not contemplated.
studies and investigations as are neces- .
sary and inform the District Engineer After-the-fact permits-so vitally im-
whether the quality of the waters will be portant to whatever chances Moretti has
reduced in violation of applicable stand- for saving the IIammer Point project--
ards or the value of natural resources are specifically recognized in the Corps
and related environment will be unrea- regulations. Read in conjunction with
sonably impaired. (iii) The District all the regulations, the regulations con-
Engineer will hold public heaiings when cerning after-the-fact permits provide
response to a public notice indicates that that they he processed in the same man-
all parties will not have an opportunity ner as other permit applications. These
to be heard except at a public hearing. procedures were not followed to full
(iv) Besides weighing all factors in completion of the'administrative proc-
granting a permit the District Engineer essing of this application in this case.
shall, when advised by the Regional Di- This is of great import to what we do in
rectors that work proposed will impair this opinion.
water quality or related natural re- So long as that regulation stands
sources encourage the hopeful permittee the Department o the Army Nvas re-
to take steps to resolve the dispute at quired to respect it. [Citations
omitted. I Moretti had a
the district level and failing this shall
refer the case to the Chief of Engineers right to file the application and have it
-his counterpart the Regional Director processed in accordance with those retog-
ulations. Conversely, the Corps of En-
submitting his views to his agencies gineers as the delegated agent of the See-
"Washingrton headquarters"-for appro- gineers as the delegated agent of the Sec-
"Washington headquarters"--for appro-
priate action. (v) Finally the Chief of retary of the Army had the duty to proc-
Engineers and the Under Secretary of ess Moretti's application.
Interior shall consult and attempt to re- But as it was, somewhere during ad-
solve any differences between their de- ministrative gestation the permit appli-
partments and failing this the case shall cation was aborted, an event provoked
be submitted to the Secretary of the by the mandatory injunction of the Dis-
Army for decision after consultation trict Judge.
with the Secretary of the Interior. Stopped W
The Buck Stopped Where?
The Corps regulation �� 209.120(e), [The court noted that the
(f) and (g) govern the applications for after-the-fact permit was
permits and the handling of these appli- being processed until the
cations with regard to public hearings: Bureau of Sports, Fish-
and notices to other agencies of federal eries, and Wi ldlife ob-
and state governments .... eries, and Wildlife ob-
jected to the granting of
the permit. ]

130

AL this point the permit granting pro- Court and challenges on appeal the proof
(aedure seems to have ground to a halt of a number of necessary elemients of
and left Moretti's application in a sort the government's case under 33 U.S.C.A.
of limibo if not in fact stranded Ilv ttie �403 and 11 406. They are (J) whether
ubiquitous "sunken object." the water in question is 'navigable wa-
ter of the United States," (ii) whrvther
self 1-lip For The Impatient? the Mean High Water Mark -was adc-
Despite the urirevoked order of the quately proven, (iii) whether any oh)-
District Engineer to discontinue dredg- struction to navig,,ation had been created,
ing, Moretti resumed working below the and (iv) whether � 406 of the Act nii-
mean high tide line, apparently in early thorized the District Court to order the
June 1971. Presumably, he simply de- removal of a land fill as a "structure,."
cid(,d that he had waited long enougrh
for the Corps of Engineers to act on his N'rvigability
permnit and that it was time to resume
the construction of Hammer Point. Florida Bay i., located at the southern
tip of the Florida peninsula and me~rges
Rumors that Moretti had resumed with the Gulf of Me(xico on its western
work reached the Jacksonville office boundary. On then east, Florida Itay is
which instructed engineer Ross of the adjacent to Biscayne Bay which leads to
Miami office to investigate the situa- the Port of Aliami. The length of
tion. Onl July 14, 1971 he found that Florida Bay is traversvd by the Intra-
Moretti had resumed, and substantially coastal Waterway which runls from the
completed, work onl the Hammer Point Gulf and enters Biscaynec Bay through
project. Florida Bay. Although the record did
not reveald the piccisc distance of appel-
The Seene Of Action Shifts lant's property from the Intracoastal
Pricked by Moretti's disregard of the Waterway, it is cleal, that it is inl clojse
lpermit requirements the government proximity to this Waterway. The Coast
lashed out onl several fronts. Ani infor- anSedei urvey Chart shows that
niation was filed by Engineer Ross at its nleares"t poinit, ithe lintracoastal Wa-
charging Moretti with a criminal viola- terway is less than on~-_Nalf mille front
tion of � 4031 which is outlawed by 18 Hammer Point.
U.S.C.A. � 406 ,and Moretti was arrested Navigability, even at a timeL
July 15. While Moretti was appearing when its requirements were more strin-
for arraignment onl July 30, originally gent, was simply a question of whether
set before a magistrate but taken over the waterway "in its natural and ordi-
by the( trial judge, Moretti was served nary condition affords a channel foil
with the civil complaint seeking prelimi- useful commerce," The Daniel Ball, 10
nary Bande Iermanent injunction of fur- Wall, 557, 19 L.Ed. 999 (1871 ).31l Ac-
thev operations beloNA the mean high wa- cessible as it is to both the Gulf of Alex-
ter mark and for relief in the formi of a ico and Biscayne Bay, and traversed
mandatory injunction for.cing, M~oretti to lengthwise by the Intracoastal Water-
undo the fruits, of his lahors, all as au- way, Florida Bay is a natural pasasage
thorized by � 406. for commerce, and easily meets even the
After a short hearing thed trial court
issued a preliminary injunction 'and lpro- 36. ''Irb list I:ii1j down inl tife I ANIFI,
ceeded to he(.ar the casme onl the merits IIWA,~ wits gninerally milivroll to Ily 1,1Ia
three weeks laters. The court found, as srltli C~our hn li. t Apalehisin l Eiti
is evident fromt the record, that Moretti P'ltiw' So.'lv 1 v. Apitla, 01vi('1. 291,
had dloll)' substantial dredging and fill- 85 1A-,. 213. iln Wliih the CoUrlt 9;1v'
ing, without it Corp~s of Engineers per- teI' tormi 'ZII-vigablo water' in the Irl
mit. The Coturt found the waters navi- P'ower Aet a brotifer constructiom thanr
gable, and determined ~~~~that smoftetatlaidl (IUNw iln tile )ANIE'L IIALI
gable, and determined that some of the an1)(Iilli th~ d'. in tikkit followed it."
work was done in the navigable water. G-olgia J'ower C'o. v. Fedetni Power
Thle District Court ordered that the gov- C'(,l~ioniss, .' (Oi., 19101, 1532 1'.2i1 !10S
ermient ,zhould have all the relief it 912. TI'll vxal)lX~iol of tho vonci-It 01'
sou~ght-namely to have Moretti undo ttn'.igability" wit" to inclvU(Je thle e:alitity
to r ri nswJCIIiato inroventents as fkn indivia
what he had done. of- thle shility of tlie waterwvay to support.
Moretti challenged in the District oolttwll('Irsnyorot-

131

historical-literal test of navigability. Of ment, stage is not easy to say. Every-
course, as with most bodies of water, one apparently concedes that the mean
there comes a point where the depth of high tide line is tot a precise measure-
water is minimal as the bottom slopes ment. And all concede for this case that
up to the bank. But one would hardly rellief sought. dep(lents on the government
(ontend that the ItMississippi is any less proving that A1oretti dredged or filled
naviga[ble simply because a pirogue bayward of MITTTL. For the Corps ha:s
would go aground at the water's edge. no power landward of it to reg;ulate his
Questionlld directly as to the naviga- conduct or force reconstruction of the
bility of Florida Bay the Resident Engi- topograplhy as it existed before he be-
nler for the Corps testified unequivocal- gan worli. The District C(oulrt agreed
ly that Florida Bay is a navigable water. that that which was landward of MJITL
Indeed, if Florida Bay were unnavigable would not, could not, and should not he
Mloretti's development of his property aff'ected by mandatory injlnction.
including finger slips and canals so that The record proof on loce 'on of MHITI
his mobile home park would be a "live-in took two forms;. The fir; was onl the
marina" would be incomprehensible and trial. The seconid .as a plt,. of the plan
obviously wasteful and a deception to to be filed by Mloretti ou lininlg the'
purchasers Nwho expected waterborne ac- method to he followvd in re !oring tho
cess to the sea, not the restricted move- prior condition. On the trial, the gorv-
met in a short landlocked pond. eminent callfed a civil enginetir, Mr.
OIbstzruction To Navigatigon rJames (Glass, employed by Moretti in de-
signing the Hammer Point project and
Moretti's argument that there in soliciting the, after-the-fact permit
was no showing of an obstruction to from the Corps of Engineers. The
navigation, and hence that one element
prerequisite to relief was missing from
which accompanied the application for
the govenment's case, is navailig. I which omnid th ppliction fo
the after-the-fact permit. Engineer
li;,'.2of 7f9' ,el v. T;d , 5 Cnir., State 4vP'
1'.�d f"'9, 2(07 and TIniltcl bStates v. Pel- Glass testified that he placed the MIITI,
dma Paving 'o., 2 Ctir, r )i(;4 S ta2 li'v.2d Pfrom aerial photographs taken before
754, anv argCrlment th;at tChe filling 3 o the project got underway. The District
7naigale wayters does not; reduce navig- o Court accepted this determination as
able apacity of the filled duwaterway n 'a correct, but whether the Corps of Engi-
neers ever did is unknown since the per-
thereby constitute an oL;truction within t appication aborted The Resident
the mea~llillg of k 40:t hol dels on lhe? mit application ahorted. The Residentl
the meaning of � 403 borders on the Engineer also testified as to the location
of the MIITL. He stated that normally
the MIITL would be located by visual
Structusres observation, which, however, would be
rG6 Moretti next contends that � impossible in an after-the-fact situation.
406 grants to the District Court only The upshot of his testimony was that he
the authority to cause the removal of had piesumed the location of the MHTIL
"structures" from navigable water and from the permit application supplied by
that a land fill is not a structure. The Moretti.
meaning of "structulres" in this pl'ovi- Actually, the Court did not undertaklt
sioll has often enougrh been the subjeel.t to fix MIHTL. His final order in a nieg*
of litigation that we have no doulbt ative sense prohibited further activity
that it encompasses the land fills here in bayward of it. And the hotly contest-'
question. In [ United States v. ed mandatory injunction simply or-
Rtepulblic Steel Corp., 11960. R6i2 U.S. dered Moretti (i) to restore the prior
482, 80 S.(lt. 884, 4 l: Ed.2'd 903,1f conditions bayward of MHTL and (ii)
the Supreme to file a formal plan showing in detail
Court held that accidental sedimentation how the work was to be carried out.
which caused the fillingr of a nalvigable
valterl constitilhtel a strcl ivttulc Nvithlin the: As a part of the formal post-decree
mealinRg of � 406. This doubllole-bottomeld plan Moretti included a plat prepared by
answer is enlough for us. Mr. Post, an engineer associated with
Meann Hi~gh. Tide Iine the same firm as Mr. Glass, the engineer
who drafted the after-the-fact permit
A good deal is urged about Mean application. Engineer Post's plat shows,
High Tide line (1IWIIT[,). Just what and Moretti calinot seriously dispute,
bearing it has at this, not th'e enforce- that substantial areas of excavation -and
132

refill were bayward of MIITL. If Mor- But while we find ample julisdiction,
etti challenges that, there is no mark of and on the record a set of facts .which
it in the record. Since there is no indi- would otherwise authorize the stringent
cation whether the District Court ap- mandatory injunction of restoration.
proved the plan it is unavoidable that this parlt of the Court's older must he
the exact line may still be open to some vacated to permit the further procced-
q,18st;ion either in further proceedings ings on the application for an after-the-
before the Department of the Army, the fact permit.
District Court or both. But no action is
yet before us which would call for any T'h Scc'nc Shifts Again Back To The
modification of MHTL. Army?

As we have pointed out ili
Co,,rt's Use Of Negativc---Affirmative
Inj~f Use Of Neganctione--A4ffirmative great detail � 403 and � 406 with their
complementary regulations are struc-
Putting to one side the drawing tured on a permit system. The statute
of the exact MIHTI, we have no doubt itself is not to be read as prohibiting all
that the Judge had the right to reach such obstructions, but only those not au-
the conclusions that he did both on ju- thorized in accordance with the regula-
risdiction and the operational facts. It tions. Those regulations'prescribe also
is equally clear that in the posture of the right to seek an after-the-fact per-
the case as it came to him and as he mit. Moretti has initiated this applica-
handled it. . tion. Through no apparent fault of his
the Court had the power to issue'appro- own and without his ever having with-
priate injunctions prohibiting any fur- drawn it the Corps of Engineers has ei-
ther work. This authority is drawn not ther ignored the application or reached
only from the Court's equitable powers some undisclosed determination that be-
in carrying out the obvious policy of the cause the United States Attorney has.
Act bult such relief is expressly autho- successfully been importuned to enter
rized by � 406, see note 2. ;,rJpra. the case the Corps and the Department,
And for the further guidance of; .of the Army have no further obligation.
the (Cour't and the parties as this case We have held above and repeat again
now takes a new twist we have no doubt that this is simply not so.
that the issuance of a mandatory injunc- Since the statute and the regu-
tion requiring extensive restoration op- lations recognize that the developer has
erations at very large expense to the de- a right to seek-not necessarily obtain
velopers is entirely within the Court's ---an afte-the-fact permit and Moletti
power as expressly mandated by the has undertaken to do this in a way not
statute. Section 406 just plainly states, challenged for its procedural or ubtan-
challenged for its procedural or substan~
"the removal of any structures or parts tive sufficiency, a Federal Judge has no
of structures erected in violation of the power to cut off this statutory scheme
provisions of the said sections may be and insert his judgment for that of a
enforced by the injunction- of any dis- successive layer of experts in the Corps
trict court exercising jurisdiction in any of Engineers the Chief of the Engi-
district in which such structures may neer's office the Department of the
exist." Army, and now, in collaboration with
Thus, the statute itself specifi- the other departments or agencies under
cally empo'vers the Court to do just environmental statutes.
what has been done. We do not mean to Whatever difficulties Moretti
say here that in every case involving a fae in trying to persuade those au-
violation of the Rivers and Harbors Acte should have an afte
thorities that lie should have an after-
wvhere no permit has been obtained and the-fact permit he is entitled to have
anll order to cease operati.ions has been is-ssed fairly a
sue(l the Court must impose such serious igelntly with an ol0pportunity as permitted
sanition6,. BRt cl.ariy the Court has the
pouwer to do it and we perceive nothing under the regllations to present sui)-
in this record which would compel us to porting data, facts and argument as to
say that in the Chancellor's discl:etion he why such relief should be granted.
ought not to have imposed this very sub- Since the application is either still in
stantial burden upon this developer., the Jacksonville office or perhaps has
died there, the Army somehow has to re-
vive it, put it h)ack oin the tracks and
start the machinery ais contemplaLted by
133

all of the regulations and the accord be- and findings of the Court below is a
tween the Secretary of the Army and matter for initial determination by it.
the Secretary of the Interior and the ap- Of course the action or non-ac.
plication of all of the other environmen- tion of the Department of the Army is
tal statutes and regulations. We do not judicially reviewable under the Adminis-
undertake here to outline the scope and trative Procedures Act of 5 U.S.C.A ��
detail cf those administrative proceed- 702, 704 (Supp. V 1970).
ings. They must go on fairly as permit- The Sceene Shifts Again--Back To The
ted by the regulations. As we read Court Below
them, if there is a. disposition to grant
The upshot is that we r emand the case
the after-the-fact permit by the Chief of
Engineer . Ad the Secretary ofor the Court to keep it actively on its
Engineers and the Secretary of the docket The prohibitory injunctions ar
docket. The prohibitory injulnctions ares
Army they must then consult all of the
other agencies concerned with environ- termination in full force administrativ e ro-
mental factors which as specified in per- tedninatoll in the admistlat tro-
.tinnt legislation and regulations must ceedings and any appeals, tdministrative
tinent legislation and regulations must
or judicial, therefrom. 'e mandatory
be brought into the picture.
injunction is vacated, su, ect to being
We do think, however, that as a reinstated on a proper shwing after
matter of primary jurisdiction it is in completion of the administrative pro-
the administrative process that the ceedings and any appeal therefrom to
MIItTL must first be determined. For the extent that the after-the-fact peramit
where the boundary of its authority is application does not authorize any or all
this elusive line, it should have the first of the work bayward of MVITL. Of
opportunity to determine whether and to course the Court is autholized to grant
what extent the area is or is not within such interim relief as might be neces-
its jurisdiction. r
its jurisdiction.s sary on a proper showing to prevent
(Citations omits th;e(jrdio ofth further incursiions into inature's domnair
This line limits time jurisdiction of the
Corlps of kiSni~gineers both negativel~~y and growing out of inaction either in main-
affir~matively, and inescapably they- must tenance or in nonlestoration beeaust of
the stay which we have heretofore
determine this as a part of the applica-
tion now pending. Whether iri the ad , issued.
ministrative process the agency shouldated i
rely to a great extent upon the record

134

SIERRA CLUB v. LESLIE SALTS CO.

412 F. Supp. 1096 (N.D. California 1976)

MEMORANDUM OF DECISION ISSUES PRESENTED
Three issues presented by these m,
SWEIGERT, District Judge. tions are: (1) Whether the terms "nati
These two consolidated actions are gable waters," "navigable water of the
:trn~lgih for injunctive ~and declaratory United States" and "waters of the Unit.
relief under the Rivers and Harbors Act ed States," as used in defining the gco.
,,of 1899 (33 J.S.C. � 401 et seq.) and the graphical extent of the Corps' regulator.
/'Federal Water Pollution Control Act of jurisdiction under the Rivers and Ietrs
1972 (33 U.S.C. � 1251 et seq.). bors Act of 1899 (33 U.S.C. � 401 c!t st'q.
and the Federal Water Pollution Contr,y
In No. 72-561, plaintiffs Sierra Club Act of 1972 (FWPCA) (33 U.S.C. � 1'lt
and Save San Francisco Bay Association, et seq., especially � 1344), are limited jt
conservation organizations, and plaintiff the line of mean high water (MlIR) or
Kent Dedrick, an individual member of extend to the line of mean higher high
the Sierra Club, sue defendants, Leslie water (MHHW) on the Pacific Coast-in.
Salt Co., Leslie Properties, Inc., and( (le- eluding San Francisco Bay; (2) whether
fendant Mobil Oil Estates. These de- the properties here in question, i. e., Bair
fendants own many thousand acres of Island as well as Leslie's other salt evap-
property along the shores of San Fran- oration and other San Francisco ffBay
cisco Bay including diked evapolration properties over which the Corps asser;t
ponds used for the production of salt. jurisdiction, are within the Corps' jolris-
The plaintiffs seek a declaratory judg- diction as defined in the two Acts; (3) if
ment that the dikes in and around the the Corps has jurisdiction over these
portion of defendants' (hereinafter "Les- properties, whether or to what extent
lie's") property known as Bair Island the Corps is estopped from asserting
were illegally built and a permanent in- such jurisdiction.
junction ordering their removal or in the
alternative prohibiting further construc- MEAN H WATER A MEA
tion or maintenance of (likes at Bair Is- HIGHER HIGH WATER
land.
In order to understand the record be-
In No. 73 2294 the plaintiff is Leslie low summarized, the contentions of the
Salt Co., suing defendants the Secretary parties and the issues in this case, it is
of the Army, the Chief of tile United necessary to explain at the'very outset
States Army Corps or Engineers, and the the meaning of the two terms "mean
District Engineer of the Corps, San high water" (MHW) and "mean higher
Francisco District, South Pacific Region high water" (MHHW): Each day (more
(hereinafter "the dorps'), and Sierra precisely, within every 24.8 hours) both
Club (an intervenor) seeking a (leclarato- coasts of the United States experience
ry judgment that the Corps' assertion of two high tides, one of which rises to a
jurisdiction shoreward )eyond the mean relatively higher shoreward level than
high water (hereinafter "MHW") line is the other. The mean high water (NIHV)
unlawful in that plaintiff's property line is the average of both high tides
above the MHW line does not constitute over a period of 18.6 years; the mean
"navigable waters of the United States," higher hilrh %eater (MI HW) line is the
also a permanent injunction restraining . Fage of only the higher of the two
the Corps from requiring aleznit applica- k for the same period of time.
tions pursuant to the Rivers: and IEallols the redCo(l shows that on the Atlantic
Act of 1899 (33 U.S.C'. � 4011 ot seqj.) or . t the difference between MIIW and
the Federal Water Pollution Control Act,. lHflW is slight, and that on-the Pacific
of 1972 (hereinafter "FWPCA") (33 ;,,st the difference is substantial.
U.S.C. � 1251 et seq.) for any work to be
performed above the MHIW linec.

135

RI.FE EVIDENTIARY RECORD these two Acts extends only to the mean
The evidentiary record as to action 73- high water (MHW) line, relying on nu-
j34A shows in substance and without merous cases holding that the Corps' jur-
jiii,)ute that plaintiff Leslie owns ap- isdiction over coastal navigable waters
*;,siimately 35,000 acres of property extends only to the MHW line.
;i,)ntg the shore of San Francisco Bay; The Corps and the Sierra Club co.ltlnd
,.t!; alil of this property was originally that the Corps' jurisdiction on the Pacif-
.,::,..hlllaln; that the prol)erty has been ic Coast extends to the mean higiher high
.Skdl and reclaimed for agricultural and water (MHH-IW) line, relying on what
,iil.r purposes and has been used pri- they contend is the underlying principle
,nalrily for salt production by means of of various Atlantic coast and inland river
,.:ialmration of Bay waters within the cases.
:,k;ue; that the property was reclaimed
.nil the dikes were built during the peri- This court has already ruled in its
., l 1860 to 1969, most of the work having Memorandum of Decision of December 9,
!,l.ln completed by 1927; that most or all 1974, in No. 73-2294, 403 F.Supp. 1292, that
, this property lies landward of the on the Pacific Coast "navigable waters,"
NI{ W line and bayward of the former within the meaning of the F'WPCA, extends
!;fT.:n higher high water (MHHW) line of up to the mean higher high water (MHHFW)
thew L'ay in its natural state; that most line. However, we did not decide the ex-
, r11 orf the property in its natural state tent of the Corps' jurisdiction under the
.s:> subject to the ebb and flow of the Rivers and Harbors Act.
idc bhut that it has not been subject to
ila:l action since being reclaimed; that The FWPCA and the Rivers and
'ruln 1899, the year of the adoption of Harbors Act must be distinguished. As
l;' Piivers and Harbors Act, to 1971 the set forth more fully in our Memorandum
('ClrpI failed to exercise jurisdiction over of Decision of December 9, 1974, 403
tbis piroperty; that in 1971 and 1972 the F.Supp, 1292, at p. 1295, the FWPCA, first
C'(rps published two Public Notices (No. enacted in 1948 and amended in 1972,
;l 22--June 11, 1971, and No. 71--22(a) makes unlawful the "discharge of a pollu-
--January 18, 1972) stating, in effect, tant," including such materials as dredged
that the Corps had changed its policy rock or sand, into "navigable waters." (33
and would require permits for all "new U.S.C. � 1311(a)). The 1972 amendments,
swork" on the property in question; that however, (33 U.S.C. � 1344) provide, as ll
pursuant to uthim b;er o eolicy the Corps exception to the general prohibition against
has issued a number of cease and desist
discharges, that the Corps is empowered to
orders to Leslie and has threatened crim-ermits "for the discharge of dr
issue permits "for the discharge of dredged
inal penalties and fines of $2500 per day.
or fill material into the navigable waters at
The evidentiary record as to action 72- specified disposal sites." We ruled, in our
561 shows in substance and without dis- earlier decision, tat "navigable waters"
earlier decision, that "navigable waters"
pute that the property in question in
pute that a t e property in question a i yn within the meaning of the FWPCA extended
that action is an area of approximately
3,000 acres along the shore of San Fran- up to the MHHW on the Pacific Coast.
The Rivers and Harbors Act, enacted
cisco Bay in San Mateo County, Califor- in 1899, makes unlawful certain specified
nia, known as Bair Island which is physi- activities, including filling pr the crec-
cally similar to Leslie's land described
above with reference to 73-2294 al- ble water of the United States" or in
though Bair Island is no longer used for "waters of the United States" without,
salt production; that the dikes on Bair
Island were constructed between 1900
Islandwre c onstrutedbetwee Since the pending actions involve jur-
and 1952; that, as with Leslie's 35,000 Smce the pending actions involve jur-
and 1952; that, as with Leslie's 35,000 isdiction to regulate filling, (likes, and
acres above described, the Corps failed to other os truction to regulate fill as jurisdiction
exercise jurisdiction over the properly other obstructions, as well as jurisdiictioln
unexerctilon over the lroerty to regulate the discharge of dredged or
until 1971. fill material, the powers of the Corps
would stem from the Rivers and Harbors
I. GEOGRAPHICAL EXTENT OF Act as well as from the FWPCA. It
FEDERAL REGULATORY JURIS- therefore becomes necessary to consider
DICTION UNDER THE ACTS the extent of the Corps' jurisdiction un-
Leslie contends in substance that the der the Rivers and Harbors Act.
Corps of Engineers' jurisdiction under

136

Although no definition of "navigable "(I) Geographic Limits: Shifting
waters" or "waters of the United States" Boundaries . . . [An area will
is inciudedl in the Rivers and Harbors remain 'navigalle in law,' even though
Act itself, regulations defining these no longer covered with watel, whentev-
tern: (as used in both the Rivcrs and er the change has occurred suddenly,
Hlarllrs Act and the FWl'CA) have been or was caused by artificial forces in-
adlt.pted ly the Corlps. The C(,rlls' "In- tended to produce that change.
terim Final Regulation" (33 CF'R 209.-
120(a), (b)(1), (b)(2), (h)(7) and (d)(1), in Prior to the adoption of the abov(-
effect since July 25, 1975, revising the quoted regulations the San Francisco
earlie-- version of � 209.120) defines District of the Corps of Engineers had
"n.a ..able waters" as used in the Rivers published its Public Notices 71-22 (June
art ir IHarbors Act as follows: 11, 1971) and 71-22(a) (January 18, 1972)
"W'aters that have been used in the which state that thenceforth the (Corps
past, are now used, or are susceptiljle would consider the limit of its jurisdic-
to use as a means to transport inter- tion over navigable waters estalished
state commerce landward to their ordi- by the Rivers and Harbols Act to li,.
nar y high water mark . . . and "the plane of the mean of the higher
naryhig water ark . and high water" and that permits would fie
also waters that are sul)ject to the ebb high water" all that permits ul(l t'il
and flow of the tidce shoreward to required for all "new work in unl'illh d
their mean high water marlk (emwean portions of the interior of diked aretas
higher higrh water mark on the Pacific below former mean higher high water.."
Coast.) See 33 CFR 209.260 (ER The case law definitions of n:vigrable
1165 2-302) for a more definitive ex- waters within the meaning of the Rivers
planation of this term." (emphasis and Harbors Act generally sul,plort t he
adlded) rules above quoted, although t.hre are
Regulation 209.260, adopted September very few cases which concern n;Lvigable
9, 1972, contains a lengthy general defi- waters of the Pacific Coast.
Initioni of navigrab~le �wMaters (subscct. (c) The only case to specifically considerl
of navigale w(subsect. (c) Othe MHHW phenomenon on the Pacific
through (j)) and then in subsect. (k) and C o ast is U litod States v. onreethv, c 73
(I) defines "geographical and jurisdic- 17 S Cl F. 2,17) e
tional limits of oceanllic and tidal waters" clo4St SC (N.Dl it). nulIe 24d 1i7) lin Te
as follows: Uncourt held, in its unpublished finlillngs at
ip. 1 and 8, that. the Corps' jurisdictiol
"(k)(1)(ii) Shoreward limit of juris- ), the Pacific (oast extends to the lalll
diection. Regulatory jurisdiction in higher high water line and has always so
coastal areas extends to the line on the extended since the enactment of the Iiv-
shore reached by the plane of the ers and Harbors Act of 1899; further,
mean (average) high water. Holwever, however, that (I. 9) the Corps was es-
on the Pacific coasts, the line reached topped from ordering the removal of fill
lv, the mean of the Wbighlier hig-h waters from San Francisco Bay but thal any
is used. (emphasis tradded) new fill in the areas of San Francisco
Bay there under consideration would re-
"(2) Bays anti Estuaries. Regula- quire a permit.
tory jurisdiction extends to the entire
surface and bed of all water bodies Other decisions arising on the Atlantic
subject to tidal action. Jurisdiction Coast, where there is no significant (lif-
thus extends to the edge (as deter- ference between MHW and MIIHW,
mined by paragraph (k)(1)(ii) of this generally have held that navigable
section, 'Shoreward Limit') of all such waters within the meaning of the Rivers
water bodies, even though portions of and Harbors Act (and thus the jurisdic-
the water body may be extremely tion of the Corps of Engineers und(er the
shallow, or obstructed by shoals, vege- Act) extends to the MHW line as (lefined
tation, or other barriers. Marshlands in the above referenced Corps of Engi-
and similar areas are thus consid(ered neer's regulations.
'navigable in law,' b)ut only so far as A leatling Atlantic Coast case is Iluil-
the area is subject to inundation by ed Staltes v. Stocco Honmes, Inc., 49 1' F.2d
the mean high waters. The relevant 597 (83d Cir. 1974) cerL. den. 420 U.S. 927,
test is therefore the presence of the 95 S.(Ct. 1124, 43 I,.Ed.2d 397 (1975)
mean high tidal waters, and not the which helti that in tidal waters the
general test describedt albove, which Corps' juristliction is dlefined by "the edbit
generally applies to inlan(l rivers andl and flow of the tidle" and inclvel:(L. tidal
lakes. marshes, citing primarily dicta in Justice

137

Field's opinion in The Daniel Ball, 77 flow of the tide up to the line of MHW,
U.S. (10 Wall.) 557, 19 L.Ed. 999 (1870). although the leading Stoeco case also in-
The Supreme Court has not addressed eludes tidal marshes without reference to
the issue of the Corps' jurisdiction in MHW.
cases arising under the Rivers and Har- On the Pacific Coast where MHW and
hors Act in tidal areas, but it has con- MHHW do differ significantly, the only
sidered the issue in reference to rivers. case of which we are aware which con-
The Daniel Ball, supra, defined the, term siders the issue, Freethly, supra, con-
"navigable waters" in reference to the eludes that MHHW is the proper line.
admiralty julrisdiction in inland rivers. If we were to adopt MHW in the pend-
'., .Vt:; Xl; lnllon, aucor(uing lo Stoe- ing cases, simply because that standard
co, supra at p). 609, that Congress later has long been used in the very different
intended to adopt in the Rivers and Har- circumstances prevailing on the Atlantic
bors Act. The Daniel Ball held: Coast, we would.be following the letter
"Those rivers must be regarded as of the earlier cases but ignoring their
public navigable rivers in law which underlying principle. The wiser course
are navigable in fact. And they are is to recognize the Corps' jurisdiction, as
navigable in fact when they are used, nearly as practicable, so as to encompass
or are susceptible of being used, in the whole expanse of the body of water,
their ordinary condition, as highways just as has been (lone for inland rivers
for commerce ..." .and along the Atlantic Coast.
In Greenleaf-Johnson Lumber'Co. v. Accordingly, we hold that tne
Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 shoreward limit of "navigable waters"
L.Ed. 939 (1915), the Supreme Court and "waters of the United States" along
stated, in reference to the extent of the the Pacific Coast, including San Francis-
Corps' jurisdiction under the Act, that: co Bay, within the meaning of the Rivers
"When Congress acts, necessarily its and Harbors Act, and therefore of the
power extends to the whole expanse of regulatory jurisdiction of the Army
the stream, and is not dependent upon Corps of Engineers under the Act, ex-
the dleptlh or shallowness of the at. teds to the mean high high water line
To recognize such distinction would e as at..33 CFR 209.260k)(1)(ii).
to limit the power when and where its II. APPLICATION OF THE MHHW
exercise might be most needed." d. LINE TO THE PENDING CASES
at p. 263, 35 S.Ct. at 555, 59 L.Ed. at
~~~~~~~~~945. ~~The next question to considler on the
present.motions is whether or not the
Thie cases are not entire(ly consistent in properties under consideration herein lie
their intercpretlation of Lthe *extent of within navigable waters--i. e., within
"navigable waters" within the meaning the line of MHHW-as above defined
of the Rivet's and Harbors Act, but they under the two acts in question. The an-
do appear to be based upon the l)rinciple, swer depends n .h er we use the
swer depends upon whether we use the
as stated upy the Supreme Court in present line of MHHW (whic h-at least in
Greenleaf, su)lra, that the authority over part follows the outer edge of Leslie's
navigable waters delegated by Congress dikes) or use instead the former line of
to the Corps "necessarily . . . ex- MHHW of the Bay in its unobstructed
tends to the whole expanse" of the body natural state.
of water, regardless of its depth or shal- Leslie contends that any jurisdiction
lowness. In differing physical circum- the Corps may once have had over these
stances this principle must necessarily )be properties -has long since been surren-
applied differently. In the case of in- dered due to the Corps' failure to require
land rivers the Supreme Court has im- permits for the construction of dikes in
plemented the principle by defining the the past. Leslie cites Stoeco, supra,
limit of the Corps' jurisdiction as the which held that the federal navigational
orilllary nigh water mark ,., servitude over the property there in
provided the rivers are navigable question "had long since been surren-
in fact in their ordinary condition (The dered" since the federal government had
Daniel Ball, supra). Along the Atlantic, failed to assert its navigational servitude
where MHW and MHHW are not signifi- for eighty years. The property in Stoeco
cantly different, the circuit and district was filled former tidal marshland sup-
courts have held that navigable waters porting streets and houses, which the
include waters subject to the ebb and court described as "fast land" and "im-
proved solid upland." Accordingly, the

138

court specifically limited ils holding "to the Corps of Elngineers under both the
tidal marshlands which ha( becolie fast FWPCA and the Rivers and Hlarbhors
landl prior to the change in policy of the Act.
Army Corps of Engineers." Ii. ESTOP'1EL
Sierra (Club contends that neither the It is well established, as Sierra
construction of the (likes nor the Corl)s' Club contends, that as a general prinei-
inaction removed the areas bechind the ple equitable estoppel cannot be applied
dikes from Corps jurisdiction, relying to d(epr've ih" public of the protection of
primarily on Economy Light C.o. v. Unlit- a statute because of mistake or ina;etion
edt StaLets, 256 IJ.S. 113, 41 S.(1t. 409, 65 on the part of public officials.
L.Ed. 847 (1921). Economy held that a [Citations omitted.]..
river, which had been damlned since See also E,7conomy, supra, which held
",-5 an~d had not been used rfor corn- that congressional authority to remove
nerlce for approxinmately a century, was, obstructions is not taken away by inac-
n,:vertheless, navigabtle within the mean- tion for almost 100 years.
ing of the Rivers and( Harbors Act, stat-
ig (p) 118, 41 S.Ct. p. 411, 65 L.Ed. p lDespite the general prilciple that
Ig53) 1 t.he government may not be estolqpped,
.853.):. equitable principles do impose sonic lini-
"The fact, however, that artificial oh-, its on the ,orp ls to now rgulat
structions exist capat)le of being abat- activities which it could lave regulated
ed( bIy due exercise of the pulblic au-
in the past but instead ignored tfor tdct('-
thority, does not prevent the stream
from being regarded as navigable in
law, if, supposing thenl to be abated, it In the penlilig cases we a1( unable to
be navigable in fact in its natural find that thte Corps or Engineers is es-
state . ... toppe(l from clhalging its policy antd reg-
a.... ing the larelas ill questLion inll tile fu-
The rules of Stoeco an(l E1conomyl are .ule. Nevertheless, we do find that in
consistent in that under Econonmy the the circlimistallres of these cases it woulil
body of water in question remains navi- be a violation of equitable priliiple: of
gable in law so long as the artificial fairness for the (orps to now relluile
obstruction is capable of being abated by permits for tbe naiiitenanee ol dikes
due exercise of the public authority, which have beell in place on the property
whereas Stoeco holds, in effect, that the here in question for more than 20
area in question ceases to be navigable years--and in mostl eass for more tInt
in law only if the artificial obstruction 50 years--ithIot objection by the fue-
has become fast land-i. e., improved sol- eril govctrlnmlet.
id upland.
The property here in question is not
improved( solid upland. It is instead un- ORDER
filled Bay bottom, much if not all of it
I 1lr~a 1Tz r i5'or the foregoinLg reasotns Leslie's mio-
below the level of M.I1HW, and much of tons i* su imary udgimeit. in 72 561
it still sub ject to periodic inundation by
Bay water for the production of salt, buthe
not now subject to the ebb and flow of of Sirru (' al the ('r is or sunina-
the tidle. .... 'y'he property i: ry judgient in 73 229.l is gratled. 'l' i
the title The lproerty L-:i Y
such that, if the dikes were broken, it
woultl return to its fornielr natural t;ond(i- judt'iJumenlt tof Sierrat Clotiob a( the suoll sr
tion of daily tidal inundation without the o S ierra and I, KaI
removal of any fill or other improve-t and
rclattion.s ' l par' l~a)'ties, on the record ;s
nents. The dikes herein are, in short, lo oflc, oil r d
niuch more closely akin to artificial ob- ow to e
structions capable of being abated by (6I) Pursuant to the Rivers and lIHar-
due exercise of the public authority as in hors Act of 181 !) the ('orps may reqluire
Economy, than they are to the improvel perilmits for the conlstruction I1" any nllwV
solid upland sut)porting streets and hous- bridge, dam, dike or caulsewa\;, or for the
es considered in Stoeco. �reation oF an,, now obstrcetin ulp h
For the foregoing 'reasons, we t1i.e l aove-d(esc(ribed line of MII11W, bhtn
findl that the (likedl areas here in (jtJes- th(' (Corls is estlpetI from rcquliini, pelr.
tion, which lie within the former line of mits ullnder the Rivers andl tlrl)ors Act
MHHW in its unobstructed, natural for an}y bridge, (hi.tl (like, ausewa.y or
st.ate, are still within the jurisdiction of oblsruc ion which has been long in lilaUe(
as hereinabllove set forth.

139

UNITED STATES v. SEXTON COVE ESTATES, INC.

United States Court of Appeals, Fifth Circuit 1976
526 F. 2d 1293

DYER, Circuit Judge: connected to the Sound, and that the
Sexton Cove Estates (Sexton) and its judgment. against Oesterle cannot stand.
former president Ralph Oesterle, appeal Sexton Cove Estates is a 73-acre mo-
from the judgrmentr.of the district court bile home development which fronts on
requiring, because they had violated the Sexton Cove in Blackwater Sound.
Rivers and Ilarblors Act of 1899, 33 U.S. Blackwater Sound is navigable water of
C.A. � 403, restoration, in varying de- the United States. Oesterle was Sex-
grees, of ten canals that. they had ton's President from 1970 to 1972, the
dredged shoreward of the mean high time of the questioned activities.
tide line (MHTI) in Sexton Cove, a palt. Sexton purchased the land in 1969 and
of lackw r Sound, in Key Lrgo, took immediate steps to develop it, Pre-
Florida, without a lpermit from thit liminary studies were made by an engi-
Army Corvps of Engineers (Corlps). The neering firm in May, 1969. In February,
district court, 3R9 F.Supp. 602, ordered 1970, a plat was lrepared and filed in
defendants to completely rill Ifive Monroe County, Florida, indicating the
pluggedt canals, which had no connec-
plug~ged I Canals, which hadl no c~onn~c- proposed construction of ten canals con-
tion with Blackwater Sound, and partial- proposed tonstrlackwaton f ten canals an-
ly fill five unplugged canals that physi- grading tnd drainage plans were com-
callyiconnected with the Sound, an~l to grading and drainage plans were com-
cally connected with the Sound, andnc~ to Ipleted by March, 1970. Lots were first
replant the mangrove fringe along the by March 1970 Lots were first
banks of the restored canals. It also
enjoined defen(lants from selling, con- Sexton was advised iy a representa-
veying or disposing of any real property tive of the engineering firm and infor-
in the development Without its allpproval. mally, by an attorney familiar with
Corps procedure that no permit was nec-
Defendants contend (1) that the Corps essary since the dredge and fill activities
lacks jurisdict.ion over the ten canals be- would be shoreward of the mangrove
cause they are above the MHITL; (2) fringea in Sexton Cove. However, nei-
that if the Corps has jurisdiction, there ther Sexton nor any of its advisors,
was no Section 403 violation; (3) that sought the opinion of any Corps repre-
reliance upon internal Corps jurisdiction- sentative concerning the proposed con-
al policy should he sustained as an af- struction.
firmative defense; (4) that the restora-
tion order was an abuse of the district On May 20, 1970, Sexton employed a
court's discretion; (5) that individual lot contractor to perform the dredge and fill
owners are indispensable parties; and (6) work on the canals. For convenience,
that Oesterle may not be held personally we allude to the canals as one through
liable for the restoration. ten. Canals one and two were excavat-
ed shoreward of the MHTL. Canals
We agree with the district court that { three, four and five were pre-existing
appellants reliance argument lacks merit , canals which were deepened and widened
and that the lot owners are not. indis- ' by Sexton. They, too, are shoreward of
pensable parties. We further agree that the MHTL. Canals six-ten were exca-
the district court had jurisdiction to vated but plugged by "many" feet of
grant restoration relief with respect to land.-
the unpluiggcbd cana�seonnected to the'
tSoe unpl ut rd ifor a further to the ' arinCanals one, two an(t three were corn-
Sound but remand for a further hearing pleted and connected with Blackwater
on the appropriate relief. We find that plSound by February, 1971, when Charle
the district court lacked jurisdiction with
respec't to the five plugged canals not Allen, a field inspector of the Corps, vis-
3. The outer edge of the mangrove fringe was
treated by the Corps as the MHTL, according
I. A "plug" is a strip of land separating waters to this advice. MHTL has never been so defin-
from a navigable water. itively established

140

itc(t Sexton Cove. Upon a subsequent activities beyond the ordinary reach of
search of Corps records, Allen deter- the water." United States v. Holland,
mined that no dredging permit had been M.D.Fla.1974, 373 F.Supp. 665, 670.
applied for by Sexton. As a result, on
Febrluary 22, 1971, the Corps' resident There is, however, necessity for focus-
engineer wrote to Oesterle to inform him ing on activities beyond MHTL today.
that a permit was necessary for the ex- Dredging or other activities may serious-
cavation. Sexton responded on March ly "alter or modify" the course, condi-
22, 1971, that it had been advised by tion, location, or capacity of navigable
counsel that no permit was required. On waters, yet take place just shoreward of
May 19, 1971, Allen returned to Sexton the MHTL. Does mere location above
Core and discovered that work was un- MHTL insulate them from the Act's pro-
derway on canals four and five. These, hibitions?
as noted, were pre-existing canals which
had connected to Blackwater Sound, but The answer to this question, is rooted
were plugged at this time in order to in traditional Supreme Court analysis of
facilitate their widening, lengthening, the scope of the federal authority over
and deepening. navigable waters. In United States v.
Rio Grande Irrigation Co., 1899, 174 U.S.
On June 2, 1971, the Corps sent anoth- 690, 19 S.Ct. 770, 43 L.Ed. 1136, the
cr letter to Oesterle which pointed out Court applied Section 10 of the Rivers
that the connection of the canals to and Harbors Act of 1890, 26 Stat. 454,
Blackwater Sound without a permit was the predecessor to Section 403 of the
illegal, and no further connection should 1899 Act. Defendant desired to build a
be made. On June 16, 1971, the Chief of dam across the Rio Grande River which
the Corps' Operations Division also wrote the United States claimed would ob-
to Oesterle telling him that a permit was struct the navigable capacity of the riv-
required for the work at Sexton Cove. er. Defendant -argued' that the river
The contractor left canals four and was not navigable in tlhe New Mexico
five plugged but they were unplugged in territory where the dam would be built
December, 1971. Canals six-ten were and therefore the statute was inapplica-
excavated after Allen's first visit but ble. The Court disagreed: "[a]ny ob-
they have never been connected to , struction to the navigable capacity, and
Blackwater Sound. anything, wherever done or however
On October 28, 1971, Sexton applied to done, within the limits of the jurisdiction
the Corps for an after-the-fact permit. of the United States which tends to de-
It was denied on June 12, 1973. Four- stroy the navigable capacity of one of
teen months later, the government filed the navigable waters of the United
this suit against Sexton and Oesterle. States, is within the terms of the prohi-
[Reproduction of 33 U.S.C.A. bition." Id. at 708, 19 S.Ct. at 777..
�403 omitted.] The Court used the Hudson River as
The statute does not use the an example to illustrate when relief is
words "mean high water mark" or available. The Croton River was a non-
"mean high tide line." After the pas- navigable stream which flowed into and
-sage of'the Act, the Corps apparently" contributed to the volume of the Hud-
adopted the MHTL as a self-imposed jur- son. "Unquestionably," said the Court,
isdictional boundary.... the state of New York had a right to
That this occurred is appropriate its waters and "the United
not surprising. The MHTL traditionally States may not question such appropria-
had been the limit of admiralty jurisdic- tion, unless thereby the navigability of
tion in tidal waters. Waring v. Clarke, the Hudson be disturbed.". (emphasis
1847, 5 How. 441, 463, 46 U.S. 441, 46�3, added.) The Court continued that if the
12 L.Ed. 226. MHTL is also the hound- state should, "even at a place above the
ary of tidal lands for property law pur- limits of navigability, by appropriation
poses. Borax Consolidated, Ltd. v. Los for any domestic purposes, diminish the
Angeles, 19365, 296 IU.S. 10, 22, 56 S.Ct. volume of waters which flowing into the
28, 80 L.Ed. 9. Furthermore, promoting Hudson, make it a navigable stream, to
and protecting navigation was the domi- such an extent as to destroy its naviga-
nant theme of the Act; hence, there bility, undoubtedly the jurisdiction of the
was "little need to focus attention on national government would arise and its

141

power to restrain such appropriation 332 F.2d at 757. See also United States
[would] he unquestioned." Id. at 709, 19 v. Balnister Realty Co., Cir.Ct.E.D.N.Y.,
S.Ct: at,777. (emphasis added.) 1907, 155 F. 583, 597.
te The Congrfessona grant under With this background we exam-
the Rivers and Harbors Act, of regula- S tion 403. We find n loclity as-
tory power to the Corps over navigable signed to its prohibitions. It prohibits
waters is the beneficiary of the same inv olbstroction to navigatle capacity.
broadly reaching analysis. The local ori-
gin of the activity or the source of its no suge estion that a l obstruc-
operation is thus not wholly determina-
tive; of at least equal significance is the cales prosecution. United States v. Per-
"effect." Zabel v. Tabb, 5 Cir. 1970, 430 ma l]vilrg Co, srpra. It prohibits the
F.2d 199, 203, cert. denied, 1971, 401 U.S. altceation or aodifica tion of the course,
910, 91 S.Ct. 873, 27 L.Ed.2d 808; United condition, locationl or capacity of a navi-
States v. Unlderwood, M.D.Fla.1972, 344 lgable water. T'here is not the slightest
F.Stupp. 486v 492. U ,See KraM. l, Section intimation that aln alteration or modifi-
10 of the Rivers and Harbors Act: The
any less an alteration or modification.
Emergence of a New Protection for Tid- aly less an lr ur nogificatioth
al Marshes, 3 Md.L.Rev. 229, 242, . 72; ''statute nor g in the languagic of ipleenta-he
Power, Federal Environmental Law, su- statute nor tli h logi c of its imrlerellLna-
pra, at 794-796. lion which creates this lbarrer beyond
which the Corps is ulbiquitously power-
less. Inldee(d, such ;1 linmitation would
There has been no case resolving the tl 1 thde t tat
question of the Corps' jurisdiction shore- conclude, then, tht acsi f the statute. Ww
wartl of the MHITL. In this Circuit, Ta- cur shorewar(l of MIJTL, absent Corps
turn v. Blackstock, 5 Cir. 1963, 319 F.2d approval, may, within certain limitations.
397, and United States v. Joseph G. AfMor- be within the prohibilions or the Ao
ctti, Inc., r Cir. 1973, 478 F.2d 418 (Mor-
etti I) are cited to us but neither is We now review those activities.
lispositive. In Tatum, we held that a We paulse only briefly to consider t he
Corps permit was necessary before sub- five canals which connect. directly to
merged land may lawfully be filled or Blackwater Sonmtl. The distriit court
excavated "if the area is navigable, or if fouind that these canals alter the course
the plroposed work would affect nearby of the Sound because they changed its
navigable waters." Taturn v. Black- shoreline. This finding is supported by
stook, supra, at 399. However, the chal- the record. Cf. Pooker v. Rochelle, 5
lenged activities occurred below MHTL Cir. 1928, 23 F.2d 492. T''he canals serve
there. In Moreltt , although we stated also as access to the Soundl for numerous
that the Corps had no p)ower landward lot owners whose boalts affct the navi-
of MIITL to regulate Moretti's conduct gable cal)acity of lthlle area. Hence, the
or force reconstruction of the topograt- Corps has jurisdiction over them.
Iphy, the challenged activities hatd oc-
curred below MHTL. In neither T'atum However, the Corps does not have
nor Moretti I was the Corps' jurisdiction jurisdiction over the construction of C;L-
shoreward of MHTL in issue. nals six ten. They are landlocked.
'I'he Sec~oll(l ('ircuit has held thcreation did not affect the course,
TSchiel 4Se):od Cislruction may be caused i (conllition, capaeit.y or location of Black-
directly in navigable waters or indirectly vl er Sotlnd. llhe district court's find-
by activity upland which creates the ob- ing that. t hast jurisliction has no cvi-
stl.ruction. U/nited States v. Perma Pav- (dentiry suppolt arld is clearly errone-
ilg' Co., 2 (Cir. 1964, 332 F.2d 754. There ous. F.R.Civ.P'. 52(a).
was no dislpute over jurisdiction:
"'lPlainly there is not one rule when a Both the Corps and the district
riparian owner discharges solids from court rely on the fact that these land-
his property into the stream and a dif- locked canals exhibit tidal fluctuations.
ferelnt one when he places such exces- The argument is that if they exhibit
sive weight on the property as to these fluctuations after they are (dug, a
cause the soil itself to move into the permit was required to excavate them
)bed of the stream." initially. However, exhibition of tidal

142

filcituation subsequernt t.o excavation (ourt's restoration order with respect to
does not. prove alteration or modification them is without foundation. With re-
* of colurse, condition, location or capacity. spect to the five ceanals that are within
If it did, every hole (lug in South Florida the jurisdiction of the Corps, we deem it
would he within the Corps' jurisdiction. necessary to vacate the partial restora-
The Corps jurisdictional fingers do not tion order, and remand the case to the
reach that far. district court for a hearing on the ques-
We turn now to appellants' re- tion of relief. The full effects of any
liance and indispensable palrty conten- environmental disturbance are difficult
tions. Appellants argue that they were to measure. Attempts to reverse such
"affirmatively misled" by Corps regula- effects and restore the environment to
tions and administrative practices which its natural state carry with them no
they interpreted to exempt them from guarantee of success. Hence, any resto-
the permit requirements. Their argu- ration plan must be carefully designed to
ment is without merit. Neither appel- confer maximum environmental benefits.
lants nor any of their "advisors" contact- At the same time, the law must be tem-
ed the Corps with respect to the Sexton prerd with a touch of equity. United
Cove operation. Furthermore, a large States 7v. Sunset Cove, supra. The de-
part of the dredging activity at Sexton gree and kind of wrong and the practi-
Cove occurred after the receipt of the cality of the remedy must be considere(i
February 22, 1971, letter from the Corps in the formulation of that remedy.
which stated that a permit was required. There is no doubt that the district
These circumstances hardly make out a court has powerful tools at its disposal in
case of an "affirmative" effort by the fashioning relief for violations of Section
Corps to mislead appellants. See United 403. United States v. Moretti, supra at
States v. Sunset Cove, D.Or.1973, 5 ERC 431. However, it is unclear from the
1029, aff'd, 9 Cir. 1975, 514 F.2d 1089. record that the appellants were given an
,-': ............ aldequate opportunity before the district
Finally, the question of Oest- court to adduce evidence and present
erlc's personal liability to pay the costs their contentions with respect to the res-
of any restoration ordered must be de- toration issue. Under these circumstanc-
termined. A corporate officer may not , es, and because of the uncertainty im-
he held civilly liable for a corporate vio- plicit in environmental rehabilitation, the
lation of the Rivers and Harbors Act parties should he afforded a hearing to
unless either the Act itself authorizes fully develop the situation. We, of
such liability, or there are sufficient alle- course, pretermit any views as to the
gations and proof to permit negation of roach of a restoration order that the dis-
the corporate form. The enforcement trict court may feel is appropriate after
section of the statute, 33 U.S.C.A. � 406, having heard the parties on this issue.
does not provide that an officer of a
corploration which violates Section 403 is
personally liable on any subsequent civil
judgment obtained against the corpo- The judgment against Oesterle is re-
ration. Antd there were neither any al- versed an(l judgment in his favor is ren.
legations in the complaint nor proof at derel. The Judgment requiring restora-
trial - to warrant "piercing the corpo- tion of the plugged canals, six-ten, is
reversed. The judlgment requiring par-
rate veil." The judgment against Oest- reversed. The judgment requiring par-
tial restoration of canals one-five is va-
crlc cannot stand.
cated and this cause is remanded for fur-
Because we have found that the crea- ther proceedings not inconsistent with
'tion of the five pllugged canals was not this opinion.
within the Corps' jurisdiction ,'the district - �

143
A,

Generally, obstructions to navigation would be struc-
tures such as piers, jetties, and breakwaters. Nevertheless,
S10 has been employed to prohibit activities which cause
obstructions other than structures. In United States v.
Perma Paving Company, 332 F. 2d 754 (Second Circuit 1964),
cited in Sexton Cove, the defendant company overloaded
riparian land with bricks. This extra weight caused the
soil to fall into the river resulting in shoaling; thus,
this activity was in violation of �10. A different situation
was present in United States v. Republican Steel Corp, 362
U.S. 482 (1960). The defendant used a river as a repository
for industrial waste solids. This waste flocculated and sank
to the bottom, gradually reducing the depth of the river.
The Supreme Court found that "obstruction" does not neces-
sarily require a structure and, therefore, there was a
violation of �10.

ii. �404 of the Federal Water Pollution Control Act Amendments

Although the Corps of Engineers exercises considerable
influence under �10, limitations were still felt prior to
the 1972 Amendments to the Federal Water Pollution Control
Act, 33 U.S.C. ��1311 et seq. (Supp. V, 1975). Until then,
the Corps' jurisdiction essentially extended only to the
high water mark. Yet, there was concern for the preserva-
tion of water bodies and land/water interfaces or wetlands,
which were not easily protected under �10. �404 of the
Federal Water Pollution Control Act Amendments of 1972 gives
the Corps of Engineers the power to issue permits for dis-
charges of dredge or fill material into navigable waters.
�404 does not supercede �10 and their permit processes are
virtually identical. Yet, �404 gains greater force from
the use of the phrase "the waters of the United States"
rather than "navigable Waters." 33 U.S.C. �1362(7) (Supp.
V, 1975). Legislative history indicates that this was an
intentional departure from the traditional definition. The
Conference Report of the Senate-House Conference Committee
stated that:

"The conferees fully intend that the term 'navi-
gable waters' be given the broadest possible
constitutional interpretation unencumbered by
agency determinations that have been made or may
be made for administrative purposes."1

1. Legislative History of the WPCAA of 1972 at 327
(1973).

144

THE FEDERAL WATER POLLUTION CONTROL ACT'

33 U.S.C. ��1311, 1344,1362
(Supp. II, 1972)

�1311.1 Effluent limitations--nlegallty of pollutant discharges ex-
cept In compliance with. law
(a) Except as in compliance with this section and sections 1312, 1316,
1317, 1328. 1342, and 134 4 of this title, the discharge of any pollutant'
by any person shall be 1unlawful.

� 18441. IlermItI for dredged or fill material
la) The Secretary of the Armny, acting through the Chief of Engineers,
muay Issue permilts, after notice and oipportunity for public hearings for
the discharge olf dredged or fill mnaterial Into the navigable waters at
spocified disposal sites.
(bi) Sub1ject to subsection (c) of this section, each such disposal site
shall be specified for cacti such permnit by the Secretary of the Army (1)
through the application of guidelines developed by the Admini"strator,'
In conjunction with the Secretary of the Army, which guidelines shall
ho based upon criteria comparable to the criteria applicable to the terri-
torial seas, the contiguous zone, and the ocean under section 1343(c) of
this title, and (2) in any case where such guidelines under clause (1)
alone wouild prohibit the specification of a site,, through the application
additionally of the economic Impact of the site on navigation and an-
chorage,
(c) The Administrator Is authorized to prohibit the specification (in-
cluding thue withdrawal of specification) of any defined area as a Oils-
posal site, aind lie Is authorized to deny oJr restrict the use of any defined
area for specification (Including the withdrawal of specification) as a
disposal sIte, whenever he determines, after notice and opportunity for
public hearings, that. the, discharge of such mnaterials Into such area will
have an unacceptable adverse effect on municipal water supplIes, shell-
flsh beads and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas, liefore making such determination, the
'.ikministrator shall consult with the Secretary of the Armny. The Ad-
ministrator shall set forth in writing and make public his findings and
his rea.sons for making any__determination under this cul~section.

�1882. Definitions

(5)Th teri "person a',ezsan Idvd~I oprtt
chips association, 8tate, naunilcipalfty, commigalon, !or, political subali
Pft State, or aany interstate body.

(Wh ten 'aiaIV~wtr':~en h aes'ftetntd
States, Including the territorial seas. -

111Administrator" refers to the EPA Administrator.

145

UNITED STATES v. HOLLAND

373 F. Supp. 665 (M.D. Fla. 1974)

lKRFNTZAIAN, District Judge. 5. Without a permit issued underl au-
Th is is an action brought by thc Unit- tholity of Title [3, United States Codc,
ed St~alves to enjoin allegedly unlawful Sections 407 and 1244, defendants have
lanlnfilling oplrations in an area lhnowil discharged sand. dirt, dredged spoil and
axs llarblo(l� Isle, adjioining Papy's Bayou, biological materials into the man-made
St. leterslllrg, Florida. Thre govern- canals and into mangrove wetlands
nwnt contends lhat the defendants have which are periodically inundated by
bIeguln filliang the waters of the bal~yourl tides exceeding two feet above sea level.
with sand, dtii, dredged spoil tand bio- 6. Defendants would continue to dis-
logical materials without th(! permits re- charge sand, dirt, dredged spoil and bio-
quirtd by 3: UlT.S.C. �� 403, 407 and logical materials until the fill created
1:111(al,. Fo, relief the government re- has effectively displaced tidal waters,
Iqllsts a stoplpa.re of further filling aind thereby eliminating the normal ebb and
a Ivestorllotiol of some mangrove wetland. flow of tides over the subject property.
A hearing was held on T'ecember 21, 7. Continued discharge would result
1I7:3, to cotsidler the government's mo- in irreparable injury. ss and damage
tion for a temporary restraining order. to the aquatic ecosystemn of Papy's Pay-
After considering the evidence and ar- ou and to the commercial and sport fish-
gument of both pairtes the motion was eries which are dependent upon the estu-
granted. On I)ecember 26th the tempo- aries of the Gulf of Mlexico.
rar restralilning order was extended in The Court felt these facts established
full forlcl perding further hearings. acts of sufficient scope to warrant fed-
On Jalnuarl' 9, 1974, plaintiff's motion eral jurisdiction under the Federal Wa-
for prelimilary injunction was heard. ter Pollution Control Act, and of suffi-
At that. pr'lce(ling the following were cient magnitude to justify a preliminary
established lo the Court's satisfaction: injunction. The motion for such an in-
1. DIefendants are engaged in devel- junction was granted at the hearing. A
oping a 281 acre tract of land known as brief order of injunction and findings
Ihtlrbor sle. was signed January 11, 1974.
2. For, the purposes of the prelimi- Since the courts have not yet been
nary injlncttion hearing the Court ac- faced with the question of whether fed-
cepted defendants' determination that eral jurisdiction over water pollution en-
the mean high water line is one foot compasses intertidal wetlands by virtue
above sea level. of the relatively new Federal Water PIol-
2. Tide data, visual observation and lution Control Act Amendments of 1972,
classification of vegetation established 33 U.S.C. � 1251 ct seq., this opinion
thalt a sl:ubst:antial number of tides cx- will offer the ratiortale for the grant ol
ceed two feIt above sea level. jurisdiction.
(a) The lrnited States Geological
Sur'v'y titlo gauge data indicated that The Federal ieater Pollution CGontrol
50:100 tides exceed two feet in the Act Amiendments of 1972
subjectl; alers each year. The governlment charged the de-
4. The parties stipulated to the accu- fendants with past andl continuing viola-
racy of a Inllland survey introduced by de- tions of Section 3011(a) of the Iederal
fendants. Tfhe survey and other evi- Water Pollution (:ontrol Act Amend-
dence established that: ments of 1972 F1'WPCA). To sustain
(a') Morst of the property is inter- this illegatilill to shonings had to he
laced wi lb artificial mostquito canals made. First it had to be established
containingr water. that the defenidants' acts were such as l,
be prohibited if done in watelrs within
(1h) The water in the mosquito ca-
federal jurisdiction, and second, that the
nals is connlected to Papy's Bayou.
waters receiving the imll)act of the pro-
(() 'j'hr elevation of much -of the hibited conduct w(ere indeed within that
property is less than two feet. jurisdictional ambit.

146

Prohibited _ ctivitics tion there has been considerable discus-
sion about whether the mosquito ditches
Th, FWPCA is an admirably that connect with Papy's Bayou are
comprehensive piece of legislation. It "navigable" and much testimony about
was designed to deal with all facets of whether certain discharges of pollutants
recapturing and preserving the biologi- were above or below the "mean high wa-
cal integrity of the nation's water by ter line." Argument was heard on the
creating a web of complex interrelated issue of whether federal jurisdiction un-
regulatory programs. Section 301(a), del the FWPCA was limited to activities
the enforcement hub of the statute, how- taking place in navigable waters below
ever, is stated very simply. It provides the mean high water line. Because the
that except as otherwise permitted with- terms "navighbility" 'and "mean high
in the Act "the discharge of any pollu- water line'" have played such important
tant by any person shall be unlawful." parts in determining federal jurisdiction
The plainness of the prohibition is over water pollution in the past, the con-
matched by the breadth given the defini- tention that these terms should be used.
tion of a "discharge of a pollutant": in arguing jurisdiction under the
(A) Any addition of any pollutant to FWPCA was not surprising.
navigable waters from any point For years the mainstays of the federal
source, water pollution effort were Sections 10
(B) Any addition of any pollutant to and 13 of Rivers and Harbors Act of
the waters of the contiguous zone or 1899. Section 10 makes it illegal to fill,
the ocean from any point source excavate, alter or modify the course,
other than a vessel or other condition or capacity of waters within
floating craft. 33 U.S.C. � 1362(12) the boundaries of a navigable waterway
"Pollutant" is in turn defined as Without authorization from the Corps of
Engineers. Section 13 prohibits the de-
cinerator residue, se wage, garbage, posit of refuse in, or on the bank of, a
�inerator residue, sewage, garbage,
sewerl sludge, munitions, chemical navigable waterway without a Corps of
wastes, biological naterials, radioac- Engineers' permit. Both of these laws
are by their terms limited to waters that
tive matelrials, heat, wrecked or dis-
tiv materials heat ware deemed navigable. Because of this
carded equipment, rock, sand, cellar
carded equipment, rock, sand, cellar limitation past discussion of federal ju-
dirt and indlstrial, municipal, and ag- riedictio over water poution was
ricultural waste discharged into wa-
ter. . . . Id. � 1362(G) (empha- largely a question of the navigability of
tsis ad. Id. ~ 1362(6) (empha- the waterway being affected.
sis added)
And "point source" is Why the Congress limited the Rivers
any discernible, confined and Harbors Act to navigable waters is
no insoluble mystery. Although the
and discrete conveyance, including but Costitution does not though the
Constitution does not mention mirvgableb
not limited to any 'pipe, ditch, channel,; iwaters, it vests in Congress the power to
tunnel, conduit, well, discrete fissure, "regulate commerce with foreign nations
container, rolling stock, concentrated and among the several states." Since
animal feeding operation, or vessel or
much of the interstate commerce of the
other floating craft, from which pollu-
19th century was water borne, it was
rants are or may be discharged. Id. � early held that the comce power nc-
early held that the commerce power nec-
1.362(14) (emphasis added)
essarily included the power to regulate
The evidence substantiates the defend- navigation. CCitations omitted. -
ants' admission that without a permit To make this
they have discharged and would continue control effective Congress was deemed
to discharge from point sources, includ- empowered to keep navigable waters
ing dump trucks, drag lines, and bulldoz- open and free and to provide sanctions
ers, materials defined as pollutants. for interference. See, e" g., Gilman v.
Whether these pollutants were dis- Philadelphia, 3 Wall. 713, 70 U,S, 713,
charged into waters within federal juris- 18 L.Ed. 96 (1865). The Rivers and
diction was the key issue. Harbors Act of 1899 was an exercise of
that power.
Jurisdiction under the FWPCA
Although the reach of federal power
Throughout the course of this litiga- under the commerce clause widened dl(a-

147

matically in the twentieth century, the that the line is an inviolate barrier to
nineteentih century legacy of "naviga- federal assunmption of authority over ac-
tion" lingered to limit federal control tivities landward of the line. Examin-
over water pollution. Since Congress ing the history and use of the line un-
had clearly limited the Rivers and HIar- derscores the point.
bolrs Act to niavigation, any subsequent At common law the ordinary high tide
jUdicial broad3ening of jurisdiction under marked the }loullary between private
the statute of necessity had to be in the and sovereign lands.
form of expandnhigt the definition of The United Slates Supreme Court in
"navigability." Borax Consolidated, Ltd. v. Los Angeles,
Starting with the basic definition of 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9
waters that (1935),., adopted
form in their' ordinary con- the . "mean' high water" line as
dition by themselves, or by uniting the limit of a federal land grant.
with other waters;, a continued high- llhe test of the mean high water mark
way over which commerce is or may became the inveterate standard to he ap-
be carried on with other States or for- plied in limiting federal authoritv over
eign countries in the customary modes navigable waters.
in which such commxerce is conducted If the instant case involv'ed only the
by water. (The Daniel Ball, 10 Wall. qlestioll of fcllrl julisdictioll t'l
winon-navigable streams and wetland areias
557, 77 U.S. 557, 19 L.Ed. 999 (1870). no01-11,1vigable streams aid wetland areas
557, 77 U.S. 5,7, 19 L.Ed. 999 (1870). under the Rivers and Hiarbors Act the
the test of navigability was enlarged in ourt might be comelled to drn iA it-
1874 to embrace waters that had the ca- otlit might be cosheer wei dt of pe llrIdnt.
pability of commercial use, not merely iut such is not til case. Hlcedelt.
those in actual use. The definition was Ecxurt is noese tie with ca slllihe
again expanded in 1921 to bring in wat- b(ouht s presatd wit h a ew fdeal l
erbodies whose past history of commer- ought liitd to the traitionw federal law
cial use made it navigable despite subse-
quent physical or economic changes pre- navigability.
venting present use for commercec. In On October 1l, 1972, the Congress (ex-
1940 it was held that a waterway would i'cised its .power under the commerce
be deemed navigable-in-fact if by "rea- clause by enacting the FWPCA, estal-
sonable improvements" it could be made lishing regulatory programs to combat
navigable. Thus the jurisdictional ba- pollution of the nation's waters. Even
sis broadened until only the most insig- though it seems certain that Congress
nificllant body of water could escape one sought to broaderl federal jurisdiction
of the tests of navigability. under the Act. it did so in a manller
But the limitation of navigability still that appears calculated to force courts to
worked to impede efforts to forestall the engage in verbal acrobatics. Although
degradation (f the aquatic environment. using the term "navigable waters" int
Not only did small feeder streams and the prohibitory phase of the statute, the
tributaries remain exempt from federal definition of "navigable waters" is stat-
jurisdiction but, more importantly, thei . s ., ,
wetland areas adjoining the waterways including the territorial seas." 33 U.S.
did also. C. � 1362(7). The definition stands
Id . . . with no limiting language.
The Mean High Water Line If indeed the Congress saw fit to de-
Since the Rivers and Harbors Act was fine away the navigability restriction,
passed at a time when interstate corn- the sole limitation on the reach of feder-
merce was thought of in a geographical al power remaining would be the com-
sense, and since the Act was designed merce clause. Thus two questions
primarily to keep the navigable waters emerge. Did Congress intend to define
free of physical impediments, it was nat- away the old "navigability" restriction?
ural to draw on the property-law concept And does the Congress have such pow-
of the mean? high water line to limit the er?
scope of jurisdiction in tidal water The answer to the first, uestion
But because the mean high water line is in the affirmative. The Court is of
wBs ecand i used the mean high water line the opinion that the clear meaning of
was. and i::, used to demarcate authority the statutory definition may be aser-
in tidal zones does not 'necessarily mean the statutory on its ce witi on may be ascer-
taned on its f48ce without having to rely

148

on the well established judicial philoso- the type of activities involved in tho in-
phy It;:d. "forbids a narrow, cramped stnat cas --the pollution of ionl-naviga-
reading" o.' water pollution legislation. ble mosquito canals and mangrove wet-
� Citations ornittedci. The land areas.
legisl.:tive history of the FWPCA sup-
ports this eiear mealing. As prebviousiy 'noted the dlefendlants
port Theis culer mening.d tha without a pelrmit have filled anti other-
[The court finds that Congress wise polluted various mosquito canals
intended, to broaden the de- which connected with the waters of
finition of "navigable waters" Papy's Bayou. The manmade canals
for water quality purposes.]' wveire found to be non-navigable for the
The foregoing compels the Court to purposes of this action.
co=clhde that the former test of naviga-
bility was indeed defined av.:..- in the The conclusion that Congless in-
FIWP(CA. tended to reach water-bodies such as
(Clarl Co has these canals with the FWPCA is ines-
eliminate the "navigability" limitation capable. The legislative history quoted
from the reach of federal control under sUflprt manifests a clear intent to rleak
the Commerce Clause. The "geograph- from the limitations of the Rivers alIJJ
ic'" and "transportation" conception of Harbors Act to get at the sources of pol-
kihe Commerce Clause which may have lution. Pollutinlg canals that empty into
placed the navigation restriction in the a bayou arm of Tampa Bay is clearly an
Rivers andcti IIaiblor s Act of 1.8919 has activity Congriless sought to regulate.'
long since been abandoned in defining The fact that these canals were man-
fedelral powcer. Now when courts are made makes no difference. They were
forced with a challenge to congressional constructe(l lrlg befole the development
power under the Conmmerce Clause a scheme was conceived. That the defend-
statute's validity is upheld by determin- ants used them to convey the pollutants
ing first if the general activity sought without a permit is the matter of impor-
to be regulated is reasonably related to, tance.
lr has an effect oil, interstate commerce The Court is of the opinion that
nod, second, whether the specific activi- the waters of the mosquito canals were
ties in the case before the court are within definition of "waters of the Unit-
those intended to be reached by Cou- ed States" and that the filling of them
gress through the statute. without a permit was a violation of the
[Citations omitted.> P'.FPCA.
It is beyond (I'uestlon that water Whether the CA was meant
pollution has a serious effect on inter-- to reach activities such as those commit
to reach activities such as those commit-
state commerce and that the Congress ted here in mangrove wetlands above the
has the power to regulate activities such ted here in manganese wetlands above the
has the power to regulate activities such mean high water line is slightly less ap-
as drledging and filling which cause such parent. An examination of Congession-
p0olltion.
Cpolltiongress andthecourtshavee-al intent, however, leads this Court to
ngress and the couts have be- the conclusion that such interrtidal wet-
cume :aware of the lethal effect pollution
has on all organisims. Weakening anyt to be covered.
of the life support systems bodes disas- The first glimpse of Congressional in-
ter for the rest of the interrelated life tent comes from the FWPCA itself.
forms.. To recognize this and yet hold Section 101(a) puts forth the purpose of
that pollution does not affect interstate the Act:
commerce unless committed in navigable "The objective of this Act is to ret
waters below the mean high water line store and maintain the chemical, plihys-
would be contrary to reason. Congress ical, and biological integrity of the
is not limited by the "navigable waters" Nation's wvaters. In order to achieve
test in its authority to control pollution this objective it is hereby declared
4 under the Commerce Clause. that, consistent w ith the provisions of
Having thus ascertained that Congress this Act---
had the power to go beyond the "naviga- (1) It is the national goal that the
bility" limitation in its control over wa- discharge of pollutants into the
ter pollution and that it intended to do navigable w aters be eliminated by
so in the FWPCA, the question remains 1985;
whether the Congress intended to reach

149

(2) It is the national goal that wher- One of the sources of pollution
ever attainable, an interim goal in the instant case was the discharge of
of watl', qualitly which provides sandl, dirt and dredged spoil Or landtl
for the protection and propaga- which, although ablove the mean high
tion of fish, shellfish, and wildlife water line, was periodically innundated
and provides for recreation in with the waters (,f Papy's Bayou. l)e-
and on the'water be achieved by fenQidants arglue thatl such activities :l'r
July 1, 1983." 33 U.S.C. � beyond the reach of the FWPCA. This
1251 (na). Cout does not agree. Even the occa-
In Scction 102(c) the Administrator sional lapping of the bayou waters has
of the Environmental Protection Agency conveyed these pollutants into the wa-
is authorized to mriake grants for basin ters of the United States. That the pol-
studies to provide comprehensive water lutonts ale not so conveyed cvery day is
quality contr;ol planri for a basin. "Ba- of no consequence. Pollutants have been
sin" in that section'is defined to include introduced into the waterls of the United
l"rivers and their tributaries, streams, States without a permit and the mean
coastal' waters, sounds, estuaries, bays, high water mark cannot he used to cre-
lakes, and portions thereof, as well as ate a barriel behilld whic such activi-
the ],ands drained thereby." 33 U.S.C. � ties can be excused. The environment
1252(c). cannot afford such safety zones.
Section 404 of the Act establishes a The Court is of the opinion tha.t
progzram for permitting the discharge of the mean high water line is no limit to,
dredged or fill materials into waters of federal authority under the FWIT'CA.
thie Unljitcdtl States. Subsection (c) pro- While the line remains a valid demarca-
vidces for careful consideration of wheth- tion for other purposes, it, has no ration-
er' olr not such discharges will have "un- al connection to the aquatic ecosystems
accephtall.ii a;dverse effect on municipal which the FWP'CA is intended to pro-
vatcr splll),li4s, shellfish beds, and fish- tect. Congress has wisely determined
cry areas (includbing spawning and that federal authority over water pollu-
LIbreelinp, Clecats), wildlife, or reclreational tion properly rests on the Commerce
areat.s." xi 3I'.S.C. � 1344(c). Clause and not on past interpretations
These I.hree sections do not by them- of an act desirned to pr;otect navigation.
sel\vs. pr(.\( conclusively that Congress And the C ommer(ce Clause gives (Con-
SouIgilt 1() ISSiilte jurl'isdictioln oveI' activ- gress ample authority to reach activities
ilt.s taking place in wetlands above the above the mean high water line that pol-
mlealn high water� line. What these sec- lute the waters of the United States.
tions do ,reveal is a sensitivity to the The defendants' filling activities
value of a coastal bleeding ground. on land periodically inllulldated by tidal
(onmposed of various interdependent eco- waters constitute(d discharges cntei'ing
logical systemnls (i. e. marshes, mudflats, '"waters of the United States" and, since
shallow openl water, mud and sand bot- done without a piernlit, elre thus in vio)-
tonis, beach and dunes) the delicately latiul of ;3 IT.S.C. � i3i a).
balanlccld coastal environment is highly
sensitive to human'Eictivities within its
FINAL DECREE
confines. See Cooper, Ecological Con-
idet:iolrs, ioastEl Zoe Managemct This cause hav\ing come before this
siderations, (Coastal Zone Management Court for final disposition pursuant to a
129 (J. 11ite & J. Stepp ed.1971)
stipulation andl joiiit motion by the Gov-
Congress realizes the coastal ecology stilulat and join t motion by the Gov-
is endangered by poorly planned develop-t nd ll Defendnts herein for
ment. It cannot be gainsaid that the (onsent Decree, and this Court being
fully adviscd in the premises, it is hre-
discharge of pollutants into coastal, es- by orderedal aiuIgedITsfollows:
bv, ordered and adjudged as follows:
tualiine and adjacent waters have caused
colsiderable damage to the marine envi- ,. The activities fllptl) which this ac-
ronllent. Estuaries, partially enclosed till is based were onducted on property
blodies of water within which there is a known as Ilarbor Island Development on
mnleasurlale dilution of sea water )y - I'apy's Bayou, St. Petersb)urg, Pinellas
freshl-water run off, and other breeding (Coulty, Ilolida, the boundary lines of
zones have suffered the most damage. which are shown on the attached Survey
Salt wal;et marshes and other wetlands Plat No. 14021A by George F. Youn(g,
cnstitute a nlajor component of the es- TInc. Revision diated F'ebrualry 1. 1974.
tuarinle systemn. (Omitted from puIblished opinion.)

150

.1. O)n the property dlescribed herein-
above, def-endants have discharged pollu-' 9. Within 30 days from the date of
ta!;l. into w\ate"s- of the ~United States in this Decree defendants shall apply to the
violation of Section 1311(a), Title 33, approplriate Federal agency or agencies
United States Code. for any necessary permits for contenl-
r). Defendants shall perform all work plated discharge during conlstiuction ac-
necessary to allow establishment of 78.6 tivities and shall meet the conditions
:c'eS as mangrove preserve areas con- outlined in paragraph 8, until such per-
sistent with proper environmental plan- mits are issued or denied.
ning, preservation, restoration, and eco- 10. The temporary restraining order
logical colsiderations. . heretofore entered by this Court on De-
litfendants shall commence to create cember 21, 1973, and the preliminary in-
s ,tl preserve areas within 30 days from junction heretofore entered by this
the date of this Decree, and shall com- Court on January 11, 1974, are hereby
1lite all necessary contouring and debris dissolved.
jeirlnoval in those areas within three '11. Defendants are hereby autho-
,utilhsi from the datp. of this Decree. rized and permitted, from this date for-
he dlikes withholding tide waters from ward, to proceed with development activ-
the preserve areas shall then be removed ities on the propelty described herein-
aftet consultation with and the approval above in any manner not inconsistent
of thel United States Envitronmental Pro- with the terms of this Final Decree.
tectioll Agency and the United States This Decree shall not be interpreted to
A imvy Corps of Engineers. affect, excuse, relieve, or modify any le-
7. The mangrove preserve areas shall gal obligation of the defendants to com-
renimain is natural environmental areas pJly with any requirements validly im-
in perpetuity. Defendant shall take the posed by any applicable Federal or State
re(L :ssary legal precauti(os to insure laws or any local ordinances.
Ilat the mangrove pleserve areas are -a
i'ollorly protected from lawful destruc- 13. Jurisdiction is retained for the
tion by present and future owners of purpose of enabling any party to this
this lJroperty. Decree to apply to this Court at any
time for such further orders and direc-
S. Should construction activities ne- tions as may be necessary for the con-
cessitate the discharge of water from struction or carrying out of this )ecrce,
rany retention pond, defendants shall in- or for the modification or termination
sure that total suspended solids shall riot of any of the provisions herein, or for
exceed concentrations of 30 parts per the enforcement of compliance herewith.
million as a "daily average," nor shall
total suspended solids exceed concentra-
tiolIs of 50 parts per million as a "daily
nixi slium."

CONSERVATION COUNCIL OF NORTH CAROLINA v. COSTANZO

398 F. SUpp. 653 (E.D.N.C. 1975)
Affirmed 528 F. 2d 250 (Fourth Cir. 1975)

LARKINS;, Distrfct Judge: A Public Notice of the application was
sent to over three'hundred persons,
I. .INTwRDPUCTION agencies, and organizations on the Dis-
A. Statement of the Case trict Engineer's mailing list. In re-
This actionl was initiated in the Wil- sponse to the Public Notice, the District
mington Division of this Court by a corn- Engineer received one hundred and four
plaint filed on June 45, 1974,. . (104) letters in favor of the permit,
..,.-SithCcoemplaint, plain- four letters requesting clarification of
tiffs sought preliminary and permanent the application, and four letters which
;injunctive relief restraining defendant were against the permit. All Federal,
Carolina Ceope Fear Corporation (herein- State, and local agencies were in favor
;After, the Corporation) from further of the issuance of the permit subject to
cbnstruction of a marina on Bald Head certain conditions which were subse-
Island. quently incorporated -into the permit fi-
nally issued by the District Engineer.
'''h'ii cause 'is now before this Court . . . Four environmental groups,
for a final determination on plaintiffs' ECOS, Inc., the Sierra Club, the Consery
action for permanent injunctive relief, .vation Council of North Carolina, and
pre(liminary relief having been denied. the North Carolina Public Interest Re-
Plaintiffs request that the Court order a search Group, expressed opposition ,to
restoration of the dredging project area the issuance, of the permit.
to its natural condliio n. i.hey seek a re-
to its atural cpb~nd~ . The Itek a XBy Public Notice of .May 24, 1974, ,the
processing of tle dtedging permit appli- 4srtfni3, 17A, the
cation iilaecoranch'~ 'woran the District Engineer made w ritten findings
additional filing o at permit application Ih (1) that the applicant, Carolina Cape
ldd the Corporation forits deposit of pol i Fear Corporation, had given proper con-
lutants (dredge material) into the 'wa- 1 sideration to the various'public re-
ters of the manited States. sources in the area; (2) that the grant-
ing of the permit did not constitute ma-
B. General Background Facts jor federal action; and (3) that because
of the conditions imposed on the permit-
Bald Head Island, formerly known as tee, the resultant work w'ouId not ave a
Smith Island, is an island complex lying significant effect on the quiality of the
'It the mouth of the Cape Fear River in human environment. 'Th Corporation
HBrmsywick County North Carolina. had made numerous concessions. In or-
On June 30, 197:0,defendant Carolina der to minimize possible environmental
Cape Fear Corporation purchased Bald effects, revised plans included erosion
Head Island- for the purpose of develop- controls, limitations on dredge-spoil fill
ing the Island and establishing a perma- areas, guarantees to leave 400 acres of
neat. residential community. highland maritime forest in its natural
[The Corporation constructed state, and provisions for conveying 9,000
a floating dock, for.which no acres of marshes, lowlands, and Atlantic
permit was required, in order coast beaches by quitclaim deed to the
to develop the is5nd.,] State of North Carolina. Therefore,.the
District Engineer concluded that a de-
By July of 1974, an inn, a golf course, tailed statement on the environmental
road beds, and several homes had been impact of the proposed action was not
constructed. required under NEPA.
On October 1, 1973, the Corporationi
submitted an application for a Depart- C. Testimony of Charles W. Hollis
ment of the Army permit to allow it to The principal witness called by.the de-
construct a marina on Bald Head Island. fendants during the three day hearing
Accompanying that application was a de- in July of 1974 was Charles W. Hollis,
tailed environmental assessment for the Chief of Permits, Wilmington District,
Bald Head Island development. . U. S. Corps of Engineers. See Adminis-

152

tratice Reco'rd, Vol. IV, Transcript of diked areas until the sediments settle
Testimony of Mr. Charlie W. Hollis of out of the water; and when the water
July 17, 1974. The Hollis testimony quality is sufficient, the water will be
covered most of the issues presented in released to the creek or the river. (Tr.,
this case. It is the primary basis for p. 17).
the findings of facts made by this Court Although iollis did not characterize
both in this opinion and in the July 20, coastal salt meadows (which ae
coastal salt meadows (which are a part
1974 opinion. Most of it is uncontro of the disposal site) as marshlands, he
ve�tedi.
Hollis testified that his office has did refer to coastal salt meadows as
ereT: overridden the objection of anoth- being wetlands, always waterlogged
el agency to a permit issuance. (Tr., p. during the growing season but rarely
;,. He stated that the fill area includes covered with tide water. (Tr., p. 20).
;alt meadow grass and dunes, but that See Wetlands of the United States, su-
no "salt marshes" were in the fill area. pra, at p. 16.
Ir., p. 9). He characterized part of Hollis also testified that it was "fairly
the fill area as Type 16-coastal salt obvious" that the development of Bald
meadow (Tr., p. 10), which, according to Head Island above the mean high level
Wetlands of the United States, is a wet- mark will continue regardless of uheth-
land. Hollis testified that the land on er or not a permit for the marina is
which the marina itself is located and on granted. (Tr., p. 31). He stated 'that
which the spoils from the dredging were "the development is on going as it has
to be deposited are above mean high been for nearly three years." (Tr., p.
tide. (Tr., p. 11). He testified that the 32).
marina basin and the access channel will
together constitute approximately ten II. FACTS RELATED TO ENVIRON-
acres. (Tr., p. 32). He further testi- MENTAL IMPACT STATE-
fied that the fill area, as finally ap- MENT ISSUE
I proved, will constitute approximately
20.8. acres (Tr., p. 14), of which less A. Background Facts
than half is comprised of salt meadow On July 12, 1974, plaintiffs filed the
grass, the remainder being dune commu- affidavit of Dr. David A. Adams.
nity. (Tr., p. 20). The total project .* It was Dr. Adams
area would thus be approximately S0.98 who compiled the Corporation's environ-
mental assessment of its development
acres. Hollis also testified that the 10.-
15 acres which fall below the mean high plans.
water line of the Cape Fear River repre- Dr. Adams testified in his affidavit
sent less than two percent of the total that he has b e en p erson ally familiar
development project of approximately with the Island for tuwenty-five years or
development project of approximately4-35). longer, that he authored or co-authored
3,0(00 acres. (Tr., pp. 34-35).
Hollis revealed that he and represent- seven papers, published in the scientific
atives of the National Marine Fisheries and technical literature, based upon the
area, and that in 1970 he co-authored
Service inspected the project area on area, and that in 1970 he co-authored
March 13, 1974. (Tr., p. 12). At the "Smith Island: A Resource Capability
request of the National Marine Fisher- Study." Based upon his professional ex-
ies Service representatives, the stakes perience and personal knowledge, DJ.
request of the National Marine Fisher- perience and personal knowledge, Dr.
i es Service representatives, the stakes Adams formulated the following conclu-
indicating the proposed dike alignment sions about the environmental conse-
were moved so that all fill material was
eliminated from areas containing benthic quences of the proposed development:
communities. (Tr., p. 13). He testi- (1) As a result of many conditions
fied that dikes will prevent dredge mate- imposed on th'e developer by the per-
rial from going into the "marshes" and mit,'neither the marink"itself fior the
the river. (Tr., p. 16). total development of which it is a part
Will-have a significant adverse impact
Even at the time of abnormally high on the quality of the human environ-'
tide, the dike alignment is from fifty to ment.
seventy-five yards from the water and (2) T nder the revised 0lgns, t he ran
the area upon which the dredge material rina basin and the suedunding fill
rina basin and the sufrbunding fill
is being deposited is dry. (Tr., p. 18). area will be located on high land. The
The material_will be retained in the disposal dikes surroundling the fill

153

imnpact on the quality of the human
area have been carefully staked out by
field biologists from the National Ma- (nvironment.
rine Fisheries Service to insure that 8S) The present permit does not au-
no marshes containing conspicuous ev- thorize the dredging or filling of any
idence of productive benthic communi- I productive marshlands.
ties will be excavated or filled. '(9) The 9,000 acres which the devel-
(3) The marina is situated so that oper has agreed to convey to the State
(8) The ma~ina s situted s thatof North Carolina include all the
the channel entrance to the Cape Fear asf North C arolina include all th e
River will run through an unvegetated terline, a number of marsh uplands,
beach shoreline. Since the proposed
Ma. ,. . six miles of the north-south beach,
marina will have no entrance through
*mari*na will h~lave no entrance through j~and at least 60 acres of maritime for-
or connection with Bald Head Creek
ao connection with Bald shead Creek est. The conveyances will provide sig-
and the surrounding marshes, boat fit perpetual habitat for wildlife
traffic passing to and from the mari-
na will have no significant effect on
wsetlandc resources. (10) These conveyances, along with
the other conditions of the permit,
(4) During construction, the excava- *will substantially reduce any adverse
tion of the marina will be accom- environmental effects of development.
plished behind a "plug" or screen sep- Current approved plans for the devel-
arating the work from the water.. opment include the preservation of
Slurry and all aqueous portions of the more than 30 percent of the existing
dredged material will be retained be- maritime forest found on the Smith
hind confining structures until such Island complex (approximately 40
time as wvatrer quality is suitable for acres), the restriction against build-
release into the estuarine environ- ings or vehicular traffic in any fore-
ment. These measures will serve to, dune areas along the beach, the con-
minimize any turbidity, flocculatiqri, tion of roads and trails so as to
or sedimentaition within the estuarine revent erosion, the maintenance of
environmcent~ as a result bf dred~ging. . P.'eselnt vegetation wherever possible,
(5) The inside perimeter of the basin the subordination of architectural de-
and chanllnel will be bulkheaded with Sign to the natural aesthetics, the dis-
concrete sheet piling to retain existing ":-:ail of solid waste on the nmainilhani,
materials and fill. In addition, the the construction of a sewage treat-
disposal area effluent will be con- ment plant for the tertiary treatment
tained by pipes, troughs or similar de- of liquid waste, the approval of pest
control programs by the Environmen-
vices to points at or below the mean control progt ams by the v n-
low waterline of the Cape Fear River tal Protection Agency before the ap-
in order to prevent gulley erosion. plication of insecticides, a warning
Dikes *will ble planted within four and evacuation plan, the preservation
%Oehks o~f dike construction to prevent of historical sites on the island, a pot-
etodted material from entering the ad- able water supply provided by the
ja~cetlt marsh or water. mainland through submarine pipe, and
a circulating drainage system.
(6) I)omestic sewage removed from
the boats will be pumped to the cen- Dr. Adams' affidavit and other evi-
tral treatment complex for treatment. dence in the record indicate future fed-
Because of the-.ma.rina's position at eral involvement on Bald Head Island.
the mouth of the Oape Fear River, In his Statement of Findings of May 24,
tidal action may adequately flush the 1974, the District Engineer referred to a
basin. If not, force-flushing will be proposal to supply the Island with pota-
accomplished by the installation of a ble water by means of a submarine pipe-
pumping system. , line which is also mentioned in Dr. Ad-
(7) All of the aforementioned safe- ams' affidavit. Such a project, if
guards will serve to eliminate or mini- carried out would involve additional
mize any adverse environmental ef- work in navigable waters.
feets of marine construction, mainte- No other marina has ever been located
namce, and use. Furthermore, it is on Bald Head Island. There are, how-
nmy belief that the total development ever, marinas presently in operation at
will have a net significant favorable nearby Southport and at nearby Long

154

Beach. A pier constructed by Carolina except for opposition from several con-
Cape Fear Corporation was ordered re- servationists including the plaintiffs in
moved on November 14, 1972. this action. All Federal and State agen-
The marina project will directly result cies, including the U. S. Fish and Wild-
in the use of 30.98 acres. The planned life Service, presented a favorable re-
development involves the construction of sponse to the issuance of the permit sub-
492 mediumrise condominiums, a yacht ject to certain conditions which were
club, a racquet club, access roads, park- subsequently incorporated into the per-
ing facilities, and the subdivision of mit which the District Engineer issued.
most of the remainder of the high 4. Throughout the permit application
ground of the Island to allow a projected process, the District Engineer compiled
population of 14,711. The development an exhaustive administrative record
wili include the permanent removal of with great care and orderliness so that
approximately 600 acres of virgin mari- he would have a basis on which to make
time forest. A great deal of wildlife his ultimate conclusions and decisions-
habitat and wildlife will be eradicated, The administrative record was adequate
i, luding members of endangered and to enable the District Engineer to arrive
depleted species such as the Atlantic log- at reasonable conclusions.
gerhead turtle, the Eastern brown peli- 5. Although the environmental as-
can, the American peregrine falcon, and sessment is not an "environmental im-
the Ipswich sparrow.., See Letter from pact statement," it is a complete study
the Fish and Wildlife Service Regional of the environmental considerations con-
Director to the District Engineer, dated nected with the marina project.
Febr~uasry 22, 1974. ,6. The District Engineer's conclusion
A letter of January 30, 1974 from Mr. that the marina project itself, including
Howard D. Zeller, Deputy Director, En- the dredge deposit site, the access Chan-
forcement Division, Environmental Pro- nel and the marina basin, would not di-
tection Agency, to Colonel Albert C. Cos- rectly bring about a significant effect
tanzo, District Engineer, January 30, on the human environment was reason-
1974, filed by the plaintiffs on June 21, able.
1974 (written before the Corporation
agreed to Interior's seven conditions in 7. This is a private developnent
the development plans) shows that the being constructed almost entirely oil pri-
Environmental Protection Agency con- vately owned land. Only about two per-
sidered the environmental assessment cent of this entire project area directly
submitted by the Corporation insuffi- involves public property rights.
cient and sought further study of the 8. The Corps of Engineers is only in-
project. volved in this case in a regulatory capac-
The June 21, 1974 affidavit of the ity. This is not a project financed in
President of Carolina Cape Fear Corpo- whole or in part by federal funds.
ration, William R. IXenderson, revealed There is no direct federal involvement in
that the inn, complete with eight rooms, this development at the present time.
a lobby and dining facilities, had been 9. It is more probable than not that
completed by that date. Several roads tbecause of the permit, future substantial
had been cut out and graded. Also at federal involvement and labor will be
that time, six permanent houses had more imminent than it would be if the
been built and approximately 450 lots Corporation did not have the permit.
had been sold. At the May 15, 1975 in
hearing, this Court was advised by coun- 10. The District Engineer could rea-
sel for the Corporation that the marina sonably conclude that commercial and
has not yet been completed as a result of residential development by this Cor:pora-
the effects of this lawsuit. tion will eventually take place even if
the Corps denies all dredging permnits.
r B. Findings of Facts IThe District Engineer could reasonably
conclude that alteration of the highland
1. The Corps of Engineers made a areas of the Island could fairly be antic-
good faith effort to solicit comments ipated in the absence of the marina
from both the public and the various project.,
Federal and State agencies. 11. The District Engineer could not,
2. The response was overwhelmingly ireasonably conclude that as a result of
in favor of the issuance of the permit, the issuance of this permit, development
........... . .... . ....... of the upland portions of the island

155

Woutld not be accelerated. In tlhis re- Director show that the sea level at Bald
spect, the District Engineer should have Head Island and elsewhere on the Atlan-
Considered the upland portions of the Is- itic coastline is rising approximately one
land development a secondary conse- inch every ten years.
cluence of the federal action.
- * .-.'. *...- -..... B. Findings of Facts
IV. FACTS RELATED TO THE FED- 1. Salt meadow grass (Spartisna pat-
ERAL WATER POLLUTION ens) grew on approximately ten acres
CONTROL ACT ISSUE 'of the disposal area. Salt meadow grass
A. Background Facts (Spartina patens) is within the defini-
A. Background Facts tion of salt marshland under North Car-
A cross-sectional view of the disposal ti olinaf sal t marshla nd under North C11-
olina General Statutes Section 112-
area (see Administrative Record, Vol. 229(n) (3) (Supp.1914).
II, Tab R--1) shows it elevation in rela-
tion to the "mean low water line" rand 2. The wetlands in question yield nu-
the "mearn high water line." The "mean trients which contribute to the aquatic
high tide line" denotes the limit of areas biological communities in the estuary.
which ae floodedby the tide o the This contribution, however, is not great
which are flooded by the tide on then compared to the contribution of
average of twice a day. According to
avag of twice a day. According t marshes which are subject to relatively
the cross-sectional plat, the original ele- regular flushing ay the tides. The acres
vation of the disposal area was over ev- of coastal salt meadow at issue ae more
in and one-half feet above the "mean of coastal salt meadow at issue are more
pn and one-half feet above the "mean comparable (in terms of contributionm to
loN water line" and three and one-half flood plail than to predictably floodel
flood plain than to predictably flooded
feet above the "mean high water line." 1
e~et above the 'mean high water hne. I salt mlarshes. The flooding of this salt
The elevation of the "mean spring tide" m eadow is so infeloodnt that the solog
it Bald Head Island is 4.9 feet above the meadow is so infrequent that the biolog-
ant Bald lowcad w slate line. Tidet abves East �ical communities in the surrounding wa-
almean low water line. Tide Tables, East ters can not be said to be dependent on
ters can not be said to be dependent on
Coarst of North~ and South America, Na- . this contribution for their continued ex-
tiereal Ocian. uvrvey, U.S. Department of
tzonl O fln rvej U.S. Department of ;istence and integrity. (The thousands
'b ( lnmerce' (f9S7), at page 226. ' 'Mean
(once (197) at page 226. "Mean of acres of high and low marsh in the
spring tide" is defined as the annual
Bald Head Island complex are the nor-
average of the two, monthly lunar
o, monthly lunar mal and basic contributors to the pro-
spring tides. The disposal area is near'-
ductivity of the biological communities
ly three feet above the "mean spring in surrounding waters).
tide line."
Plaintiffs have presented no evidence 3. The salt meadow grass in the dis-
which disputes defendants' contention posal area might be flooded a fewv times
Ptlat these wetlands are never flooded by a year as a result of certain infrequent
J,ormal action of the tides. Defendants' acts of nature.
cotention is based on the elevation of
the disposal area relative to "mean high VI. CONCLUSIONS OF LAW
idet" and "mean spring tide." Inunda-
A. Environmental Impact Statement
t!ire, (!elltldauts argeac, might only occur
durtlinug a storm, a flood, or a hurricane. 1. The National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C.
From the results of the onsite field Sec. 4321 et seq., requires all federal
investigations of the marinal area by the agencies in performing their functions
Bureau of Sport Fisheries and Wildlife to be responsive to the national policy of
(see February 22, 1974 letter from Re- restoring and maintaining a quality en-
gional Director Carlson to District Engi- vironment. In order to ensure that the
neer, page 6), it is clear that the Type substantive policy is carried out, the Act
16 wetlands in the disposal area are provides certain procedural requirements
"vegetated with most of the above men- which are designed to be "action fore-
tioned species in conjunction with salt ing." Foremost among these is the duty
meadow cordgrass (Spartisna patoens) of all federal agencies to prepare an en-
and saltmarsh fimbristylis (Fimbristelis vironmental impact statement for every
spadicea)." "major Federal actions significantly af-
Both the proposed letter from the Ral- fecting the ' environment." 42 T:S.C.
eigh field office and the February 22, Sec. 4332(2)(C). It is settled law that
1974 final letter from the Regional the issuance of a permit by a federal

156

agency involves a "federal action" for 5. It is inescapable that the
purloses of the impact statement re- marina permit will accelerate upland de-
quilrenlenll. National Forest Preserva- velopment. The anticipated Population
tion Group v. Butz, 485 F.2d 408, 411- of 15,000 part-time residents will clearly
412 (9th Cir. 1973). This is explicitly be more imminent with the marina than
confirmed and stated in the Council on without it. Acceleration of the develop.
Environmental Quality's "Guidelines for ment will have a significant effect on
Federal Agencies under the National En- the environment.
vironmental Policy Act," 38 Fed.Reg. 6. A finding of a significant effect
20,549, Aug. 1, 1973, 42 C.F.R. Sec. on the environment compels this Court
1500 5(a)(2). The Army Corps.of En- to order the issuance by the Corps of
gineers' regulations on environmental Engineers of an environmental impact
impact statements also recognize this: statement in accordance with the specif-
.,9 Fed.Reg. 12,737, April 8, 1974, 33 ic technical requirements of NEPA.
C.F.R. Sec. 209.410(3) (2). 7. In spite of its finding of a signifi-
2. In this circuit, the stand- cant effect on the environment, this
ard for review of the District Engi- Court finds in the District Engineer's
neer's decision not to prepare an impact record "a wide-ranging, good-faith as-
statement appears to be whether or not sessment by the Corps of Engineers of
that decision was reasonable. [Citations the potential environmental impact of
omitted. , The reasonableness of the the proposed project:" Rucker v. Willis,
District Engineer's decision must be 484 F.2d 158, 162 (4th Cir. 1973). In
considered in light of NEPA' and appli- addition, this Court finds "no basis for
cable regulations. any suggestions that the decision was
3. Under applicable principles arbitrary or reached without adequate
of law, the cumulative effects of any
of law, the cumulative effects of any consideration of environmental factors."
federal action must be considered in de- Rueckc v. Willis, supra, at 162, citing
termining the significance of the impact Conservation Council v. Froehlice, 473
of the federal action onl the human envi- F.2d 6 6 4 (4th Cir. 1973). This Coult's
ronment. CEQ Guidelines for the Prep-
aration, of lEnvir~onmentanl Imlpact State- consideration of environmental factors
ents, 40 C.Ei.R. Sec. 1500.G (197nl 3) Smay be quite different from that of an-
metCorps of nineRs, DSec. 1500.6 (1973) other judge or another district engineer.
Arpm AofEninistrsative Procedure Eonvi- What is perceived to. be an adequate and
ronmenttal Statements, 39 Fed.Reg. thorough examination of the conse-
12,737, April 8, 1974, 33 C.F.R. See. quences of federal action to one judge
209 41A0p(i) (7) (ii 4, might be viewed as totally inadequate by
another judge. For this reason, NEPA
4. The CEQ Guidelines provider must be complied with so that the suffi-
that significant effects onf the environmental assessment
ment also include sec-ndary effects: . will not be forever questioned.
"Secondary or indirect, as well as pri,-
mary or direct, consequences for the' 8. The Corps of Engineers con-
environment should be included in the suited with all appropriate Federal,
analysis. Many major Federal ac-. State and local agencies and the public
tions, in particular those that involve and assessed in detail the potential envi-
the construction or licensing of infra- ronmental impact of its action so as to
structure investments (e. g. .comply with many of the policies and
water resource projects . . ) goals behind NEPA. This Court is
stimulate or induce secondary effects therefore of the view that although the
in the form of associated investments formal environmental impact statement
and changed patterns of social and was not filed before the agency decision,
economic activities. Such secondary the assessment was of sufficient value
effects, through their impact on exist- for this Court t6 validate the Corps' cte-
ing community facilities and activi- cision to issue the permit, to be invali-
ties, or through change in natural con- dated in the future if the Corps should
ditions, may often be more substantial reach a contrary decision as a result of
than the primary effects of the origi- the environmental impact statement or
nal action itself." 40 C.F.R. Sec. if this Court should find the District
1500.6(b). 150q.S(a)(3)(ii). Engineer's decision on the basis of the
environmental impact sLatement unre!a-
sonable.
157

9g. This Court will not order the in- der the Commerce Clause of the Con-
validation of the Section 10 permit on stitution. Accordingly, as used in the
two grounds: (1) This Court is of the Water Act, the term is not limited to
view that the Corps of Engineers con- the traditional tests of navigability."
ducted a wide-ranging, good-faith as- Natural Resources Defense Council v.
sessirent of the potential environmental Callawaay, 392 F.Supp. 685 (D.D.C.1975).
inmlpct of the proposed project. Rucker Judge Robinson ordered the revoca-
v. Willis, sup1-c, at 162. (2) A balanc- tion of the Corps' regulations and the
ing of the equities demands that the publication of final regulations clearly
permit not be invalidated and that the recognizing the full regulatory mandate
activities of the Corporation not be en- of the Water Act. As of this date, pro-
.ioinledl. posed regulations have been filed: final
regulations are forthcoming.
C. Federal Water Pollution Control Act
7. Under all of the proposed
1. Section 301(a) of the Federal Wa- regulations which have been submitted
tfie Pollution Conrtrol Act Amendments by the Corps and under the above-men-
of 1972, 33 U.S.C. Sec, 1311(a), provides tioned cases, the approximately ten acres
in relevant part that: of salt meadow wetlands which are with-
"Except as in compliance with this in the Coiporation's disposal site consti-
section and sections . . . 402. !tute "waters of the United States."
and 404 of this Act, the'discharge of j This land is subject to periodic inunda-
any pollutant by any person shall be tion by the tides.
unlawful."
8. The COrpoi'ation's filling
2. Sections 402 and 404 provide for
activities on wetlands "regularly or peri-
the issuance of permits for discharges odicaily inundated by tidal waters con-
which would otherwilse be unlawful un-
which would otheWise be unlawful un- stitute a discharge in the 'waters of the
ider Section aO-1C4X.- United States' and arle thus a violation
s. Section 502(i2), -33 U.S.C. Sec. of Section 301(a) of the 197-2 Amend-
s136i212), dcfi~h~t 'S~ ltge teI~r)~ :"'diSAr c-of xments to t-he Federal W'a-ter Pollution
a pollutant" as "any addition of any pol- Control Act (33 U.S.C. Section 1311
lutant to navigable wateirs from any (a))." U. S. v. Smith, supmr, at 1939.
point source . . . " Section 502(6),
33 U.S.C. Sec. 1362(6), defines "pollu- . Defendant Corporation is
tant" to inlude "1dredged) spoil . . . accordingly ordered to apply for an aft-
rock, (and) sand." er-thlie-fact permit from the -Corps of En-
gineers for the discharge of the dredge
5. 'JurlisdiEcti'on over "waters of material at the disposal site.
the United States" extends "well beyond 10. Althouh the 1972 Water Act
the mean high water mark to marsh Amendments haLe leal ;iolait Ead -'!1
wetlands which are regularly or periodi- continue to be violated (until theSection
cally inulnlatcd.:[Citatons omitted.,~ 404 permit is issued), the violation is a
6. The Corps of Engineers' regula- minimal, technical violation under fast-
tions which have g6verned the Corps' changing, unstable law.
position with regard to the coastal salt 11. This Court recognizes the
meadows in this case were directly de- difficulty in distinguishing the wetlands
dared invalid by the United States Dis- in one case from the wetlands in another
tlict Court for the!iistrict of Columbia and has therefore found a violation of
on March 27, 1975. In his order, 'Judge the Water Act. Nevertheless, this Court
Aubrey E. Robinson states: will not restrain the Corporation from
"1. Congress by defining the term its further use of the dredge deposit
'navigable waters' in Section 502(7) area pending its application for a per-
of the Federal Water Pollution Con- mit. The decision not -to restrain fur-
trol Act Amendments of 1972, 86 Stat. ther use of the area is based on this
816, 33 U.S.C. Sections 1251, et seq. Court's determination that the violation
(the 'Water Act') to mean 'the waters is a minimal, technical violation and that
of the United States, including the a weighing of the practicalities and the
territorial seas,' asserted federal ju- hardships demands that the Corporation
risdiction over the nation's waters to not be so enjoined.
the maximum extent permissible un-

158

E. Equity jury without full confidence that such
This Court will not order the action is proper.
Corporation to physically restore its The public interest would be adversely
land to its previous condition. Nor will affected by such injunctive relief. With
this Court restrain the Corporation from such an injunction, the citizens of Nol-h
its full use of the marina or its contin- Carolina would clearly be deprived of
ued work with respect to the access the unencumbered use of 9,000 acres of
channel, the marina basin, the marina, valuable salt marshes and Atlantic coast
or the disposal site. Nor will this Court . beaches (if they have not allready be(en
compel the Corps of Engineers to repro- so deprived).
cess the Section 10 permit application.
The Corps of Engineers must process This Coult's consciousness of the
:.1itd file ae if!.,,t~c stateme;,. inl accord- inevitability of the development of the
ane ith NEPA. The Corporation sland has had a significant effect on its
ante with NEPA. The Corporation
mlls;t file an application for an after- -crision not to enjoin the Corloratinl.
xic-fact Section 404 permit pursuant to It is this Court's opinion that the devel-
the Water Act. If, as a result of either opment of this privately owned island,
the environmental impact statement or as planned, with the conditions which
the Section 404 permit application, the ale attached to this permit, would have
Corps of Engineers revokes the Section a more favorable environmental impact
10 permit or refuses to allow the Corpo- than the sort of development which will
ration's Section 404 application, injunc- ensue if the Corporation is forced to
tive action will be reconsidered. abandon its project. An injunction
would clearly force the Corporation to
in a situation such as this, a court of Permanently abandon a project which is
equity is not obligated to grant the in- in the public interest.
junctive relief which the plaintiffs seek.
This Court rejects the possibility of or- Accordingly, the project will not be
dering the Corporation to restore the halted pending the release of the envi-
marina site to its previous state orly to tonmental impact statement, and the use
4llow the marina project at some future t;f the dredge disposal area will not be
,aite. This lawsuit has already inflicted "estrained pending the Corporation's ap-
grievous injury upon the (Corporation, plication for an after-the-fact Section
�anrd this Court refuses to add to such in- 404 permit.

The Corps of Engineers was not eager to shoulder this
new jurisdictional burden as indicated by its 1974 regu-
lations which retained the same jurisdiction as previously
exercised.2 The Corps' refusal to recognize its new juris-
diction foreshadowed the demise of the �404 program and the
destruction of the wetlands sought to be protected by the
Act. Ultimately, suit was brought to require the Corps to
conform to the new test of navigability. As a result of
this suit, the Corps of Engineers issued new regulations
which acknowledged the expanded jurisdiction.

2. 39 Fed. Reg. 121195 et seq. (April 3, 1974).

159

NATIONAL RESOURCES DEFENSE COUNCIL v. CALLOWAY

392 F. Supp. 685 (D.D.C. 1975)

DEC(LARATION AND ORDEIR inition of lanvigable waters and thly anr
OF1 FINAL JUDGMENT hereby declared to have acted unlawfuli;
and in derogation of their responsilili.
AUBREY E. ROBINSON, Jr., Dis- ties under Section 404 of the Water Act
trict Judge. by the adoption of the definition of nay.
Plaintiffs have moved for an order igability described at 33 C.F.R. � 2pw..
pursuant to Rule 56 of the Federal Rules 210(d)(1), 39 Federal Register 1211q
of Civil Procedure granting partial sum- (April 3, 1974) and 33 C.F.R. 209.260,
mary judgmeiit in favor of Plaintiffs on and it is ordered that Defendants Calla
Count I of the Complaint; and Defend- way and Griblle:
ants' having moved to dismiss the corn- 1. Revoke and rescind so much of t:l
plaint on all counts; and the Court hav- Federal Register 12115, et seq. (Ap,'il
ing heard argument of counsel, the Mo- 3, 1974) as limits the permit jurisdiction
tion for Partial Summary Judgment on of the Corps of Engineers by definitin
Count I of the Complaint is granted; or otherwise to other than "the wa'er.
and it is DECLARED that: of the United States."
1. Congress by defining the 2. Publish within fifteen (15) days
term "navigable waters" in Section of the date of this Order proposed regal.
502(7) of the Federal Water Pollution lations clearly recognizing the full regi
Control Act 'Amendments of -1972, /Q latory mandate of the Water Act.
Stat. S16t, 33 U.S.C. � 1251 et seq. Itl 3. Publish within thirty (30) daygs
"Water Act") to ,mean "the waters o f of the date of this Order final regula.
thei Ulited, ,ttes, including the terrib" tions clearly recogynizing the full regtu-
rinl seas," aseerted federal jurisdicttot latory mandate of the Water Act; and
over the nation's waters to the nimas it is
mum extent permissible under the Corn,
m extent per missi f the u onstitutioll .\rr Further ordered that the Clerk of this
ince Clause of the Constitution, Court shall enter a final. Judgment upon
cordingly, as used in the Water Act, tnt in
term is not limited to the traditional this Order ranting Plaintiffs' Mtio
tests of navigability. for Partial Summary Judgment, tle.
Court expressly having determined that
2. Defendants Howard II. Cklla. there is no just reason for delay in tile
way, Secretary of the Army, and Lt. entry of final Judgment on this Order;
Gen. William C. Gribble, Chief, Annrm and it is
Corps of Engineers, are without author,.
to amend or change the statutory Further ordered that Defendants' Mo-
tion to Dismiss be and hereby is denied.

CORPS OF ENGINEERS PERMIT GUIDELINES

33 C.F.R. �209.120 (1976)

(d) Definitions, For the' purpose of i@- ordinary high water mark and up to the
suing or denying authorizations under head of navigation as determined by the
this regulation, "' Chief of Engineers, and also waters that
(1) "1Navisablc. w1aters of the United are subject to the ebb and flow of the
States." The IeI;o",'navigable waters of tide shoreward to their mean high water
the United St6Ws;" -is administratively mark (mean higher high water mark on
defined to meat ters that have been the Pacific Coast). See 33 CFR 209.260
used in tle 4;,are now used, or are (R 1165-2-302) for a dfinitive
susceptible to u s a means to transport
exwlalgit6n-of this termY'':
intestate aco . e landward.to their

160

(2) "Navigatble water's". (i) The term, seaward of the base line from which the
'navigable waters," as used herein for territorial sea Is measured, as provided
')urposes of Section 404 of the Federal for in the Convention on the Territorial
Water Pollution Control Act, is adminis- Sea and the Contiguous Zone (15 6IST
tratively defined to mean waters of the 1606; TIAS 5639).
'United States including the territorial "redge d ma terial" m eans ma teri al that
seas with respect to the disposal of fiup is excavated or dredged from navigable
material and excluding the territoriil waters. The term does not include mate-
seas with respect to the disposal c rial resulting from normal farming, sil-
dredged material and shall include th. vaculture, and ranching activities, such
following rwatsers: as plowing, cultivating, seeding, and
(a) Coastal waters that are navigrtable harvesting, for production of food, fiber,
waters of the United States subject to and forest products.
the ebb and flow of the tide, shoreward (5) "Discharge of dredged, material".
to their mean high water mark (mcan The term "discharge of dredged mate-
highe high water mark on the Pacific rial" means any addition of dredged
coas t l ; material, in excess of one cubic yard
t(b) All coastal wetlands, mudflats, when used in a single or incidental opera-
sE:amps, and similar areas that are conl tion, into navigable waters: The term in-
tigucus or adjacent to other navigable eludes, without limitation, the addition
waters. "Coastal wetlands" includes of dredged material to a specified dis-
marshes and shallows and means those posal site located in navigable waters and
artecas periodically inundated by saline or the runoff or overflow from a contained
brackish wraters and that are norrmaly land or water disposal area. Discharges
characterized by the prevalence of salt of pollutants into navigable waters re-
or brackish water vegetation capable of suiting from the onshore subsequent
grofwth and reproduction; processing of dredged material that is
extracted for any commercial use (other
(d) All artificially created channels than fill) are not included within this
and canals used for recreational or other term and are subject to section 402 of the
navigational purposes that are connected Federal Water Pollution Control Act even
to other navigable waters, landward to though the extraction of such material
their ordinary high watler nark tr; may require a permit from the Corps
(e) All tributaries of navigable waterZ of Engineers under section 10 of the
of the United States up to their head- River and Harbor Act of 1899.
waters and landward to their ordinary (6) "Fill mateH ial." T he teom "fill
high water mark; material" means any pollutant used to
create fill in the traditional sense of re-
(i) Those other waters which the Dis- placing an aquatic area with dry land or
trict Engineer determines necessitate of changing the, bottom elevation of a
t regulation for the protection of water water body for any purpose. "Fill mate-
quality as expressed in the guidelines (40 rial" does not Include the following:
CFR 230). For example, in the case of in- (i) Material resulting from normal
termittent rivers, streams, tributaries, farming, silvaculture, and ranching
and perched wetlands that are not con- activities, such as plowing, cultivating,
tiguous or adjacent to navigable waters seeding, and harvesting, for the produc-
identified in paragraphs (a)-(h). a deci- tion of food, fiber, and forest products:
sion on jurisdiction shall be made by the (ii) Material placed for the purpose of
District Engineer. maintenance, including emergency re-
(ii) The following additional terms construction of recerily damaged parts
are defined as follows: of currently serviceable structures such
as dikes, dams, levees, groins, riprap,
b To "Mleant high water mark" with re- breakwaters, causeways, and bridge
spect to ocean and coastal taters means abutments or approaches; 'and trans-
tlle ine on the shore established by the portation structures.
average of all high tides (all higher high (iii) Additions to tiese categories of
ti.ies on the Pacific Coast). It is estab- activities that are not "fill!' will be con-
liiihed by survey based on available tidal sidered periodically and these regulations
data (preferably averaged over a period amended accordingly. '':
of 18.6 years because of the variations in (7) "Discharge of AlZ material." The
tide c. In the absence of such data, less term "discharge of fill material" means
3!lecise methods to determine the mean the addition of fill material into naviga-
li1 h water mark may be used, such as 'ble waters for the' purpose of creating
li:,si8cal markings or comparison of the fastlands, elevations of,-land beneath
cot:l in question with an area having navigable waters, or for impoundments
slnilar physical characteristics for which of water. The term generally includes,
tidal data are already available; without limitation, the following activ-
ities: placement of fill that is necessary
...* 'to the construction of. any structure in a
(e) "Printary tributaries" means the navigable water: the, building of any
t main stems of tributaries directly con- structure or lImpdundment' requiring
necting to navigable 'waters of the' rock, sand, dirt, or pto4pr pollutants for
United States uP' to their headwaters its constiruction; sit'ef'`evelopment fills
.and does not include any additional for recreational, industrial, commercial,
tributaries extending off of the main residential, and other usel; causew'ays or
stems of these tributaries. . roAd ilss: dams and'-dikes: artificial
* (3) "Ocean waters". The term "ocean islands, property protection and/dor rec-
waters," as defined in the Marine Pro- lamation devices such as riprap, groins,
tectlon, Research, and Sanctuaries Act seawalls, breakliwall. and bulkheads and
of 1972 (P.L. 92-532, 88 Stat. 1052), fills; beach nourishment; levees: sanitary
means those waters of the open seas lying

161

Seaf ;tl o sreatment faiities' Inake andou- jacent thereto are subject to the proce-
fall' tptipent fas cliti',Fh Dowaer pandots- dures Of this regulation.
fall pipes associate With power plants,(b) Phase 11. After July I, 1916, dis-
and subaqueous uti-ft. Ififes, -and arti- 0~gso rde aeilo ffl
(a)ip "Prson" Codciiy Pro"naterial Into- primary tributaries, fresh;-
(8)~ ~~~' "Peso Th Iez Ier water wetlands contiguou.i or adjacent to
ineans. any Individual - rvp~rtion, part-
nership, ~~ssociatkon municipality, prix1iagy tributaries, and ldkes are subject
commission, or polit' bdvson of a to the Procedures of this regulgtic~m:
State, any interstaee"r n agency (c) Phatse 111: After July.IMI 9?, dis-
or Instrunientali t GOV- ~~~~~charges of dredged material or o~ fill
or Instrumentalityof ~ Federal Oci'-material into any navigable water tire
ermient, other tha thEop fIngl- uectohercdre<hsru-
neers (see 33 CFRH 291'foprcedurestn.
for Corps projects).
(9) "Coastal -,one."' T`heterm "coastal
zone" means the coastal waters and ad- 4F7transportation of. dredged mna-
Jacent shorelands designated by a State te'rial for the purpose of dumping it in
as being included in its:60proved coastal ocean waters and construction of artifi-
zone managemient prokrahi under the cial islands and fixed structures on the
Coastal Zone ManagemnearAct of 1972. outer continental shelf. Department of
Ce() Activities Requiring Authoriza- the Army authorizations are required for
tions. (1) Structures ,pr- work in naviga- the transportation of dredged material
ble V*ateri of the Tlnited ,tates. Depart- for the purpose of dumping it in ocean
ment of the Army authorizations are re- waters and construction of artificial is-
quired under the River and Harbor Act lands and fixed structures on the outer
of 1899 (See para graph (b) of this sec- continental shelf pursuant~to Section 103
tion) for all structures6 or work In noavi- of the Marine Protection, Research, and
gable waters of the United States except Sanctuaries Act of 1972 and Section CDf
for bridges and causalky (see #j~~nd'__ of the Outer Continental Shelf Lanes
.),Ctia lciiin f&d t lvl~ Act, respectively.
by the,,V.S. Coast Guard:, structures ~4~p (4) Activities of Federal Agencies. Ex-
atructed Iresidetial deelpnQ cept as specifically provided in this sub-
prinpl-pally reieta-'dvlpe~,' paragraph, activities of the type de-
where the Banal has been;.connected't. scribed in paragraph (e) (1), (2), and (3)
~navigable water of the EtAtes (0~. of this section done by or on behalf of
Paragraph, (g) (11) of-Vtils-:kction), ald any Federal agency, other than the Corps
acti~vities. that were: rdidaimeced or 'o' " of Engineers, are subject to the author-
Plet~a st~reward of ;'t41#lshed l~r ~ization procedures of this regulation.
lie � fr a 20, Wl6) Oth e 33jv O'I Agreement for construction or engineer-
Vovh 2040 te h~~etIte .ing services performer foir other agencies
volvn~ he~lschr~' ~?dreged or1U.by the Corps of Engineers, do -not consti-
mat~ral~viable'kte~safter Ocwt~ tute authorization under the regulation.,
ber 1.8, 197.'.' Division and District Engineers; will.
- - - ~~~~~~~~therefore advise Federal 'agencies ac-
ill Structtures or work licensed undet; cordingly and cooperate to the fullest ~x-
the 1Pederal Power Act of 1B20 do not re-,j~ tenit in the expedithing processing of their
quire Departmnent of the Army authorl-'If applications.
zation's under the River and Harbor AW:
of lIt9q (see paragraphs,(b) and Cc)of
this section) ; Provided.,hwv, --hat Iffi ie ~-6licy prOviSO'__sioni T1ij-
any p~art of such structues 'or W~ork that prgah()()o hsscin eh.
involves te dischare of dredgd or III!ing to State or local authorizations, 319
material Into navigable 'Waters or the~' no-plyt or9rstutre n 1
transportation of dredged Mnaterial for._ nt appl y toederkal agnistreucetures n6
the purpose of dumping It into ocean wa-1. complinc byt n-Federal agnauexet vhoriza
ters will reqluire Department of the Army copianc isr ired non-Federal lawtorizE~.,A
authorization widerS~ct~d~ 404 of theutive policy. Federal agencies are re-,
Federal Wato? Pollution Cofitrol Act and quired tol comply with the substantive
Section 103 of the Marine Protection, State, interstate, and local water-quality
Reapporih n anture. ca standards and effluent limitations as are
app ishres o redepmtrialte. applicable by law that are adopted in ac.;',
(2) fliseharges of dredged material orcordance with or eff ective under the Pro-*!
of J'IZZ material into navig'able waters. W visions of the Federal Water Pollution.
Exc~pt as provided in subpparagraphs (2) Control Act, as amended, in the design,
(II) and Ciii) of this paragraph, Depart- construction, management, operation,
ment of the Armyv permits will be re- and maintenance of their respective fa-
quired for the discharge of dredged cilities. (See Executive Order No. 11752,~
material or of fill material Into navigable dated Dec. 17, 1973.) They are not re-.
waters In accordance with the f646wing urd oeetocti n rvd
phased s~~~~~~~hedule: ~~~~certification of compliance with effluent.
(a) Pha-,e r:, After the gffective date or, li mitations and water-quality standards
thisreglatin, iscarge ofdede from -State or interstate water pollution
material or of nil1 material Into coastal'cnrlaece i oncinwt
* waters and coastal etlahds,~gpntiguou~'activities involving discharges Into nam,-
of adJfteent thereto or into ikiland navi- g a l trs
gable waters of the Unit~#4:btates an & - ~ galwtr."
,pf-Ieshwater wetlands c~wo,#j(us or ad-,

.16 2

iii. Criteria fdr Permit Issuance

In issuing permits, either �10 or �404, the Corps of
Engineers must have certain criteria with which to judge
the feasibility of the proposed project. In the early years
of �10, the only consideration was whether the proposed
project obstructed navigation.3 Nevertheless, with the
advent of environmental concern, the enactment of the Fish
and Wildlife Coordination Act of 1958, 16 U.S.C. ��661 et
seq. (1970), and the signing of the Memorandum of Under-
standing by the Secretaries of the Army and the Interior,4
ecological factors crept into the permit criteria. To com-
ply with this change of emphasis, the Corps published new
regulations which included ecological and environmental fac-
tors in the �10 permit criteria.o These new regulations
were subjected to challenge as is seen in the following
case.

3. Miami Beach Jockey Club Inc. v. Dern, 86 F.2d 135
(D.C. Cir.), (Per Curiam), cert. denied, 299 U.S. 556 (1936).

4. 33 C.F.R. �209.120 Appendix B (1976).

5. 33 C.F.R. �209.330(a) (1968).

163

ZABEL v. TABB

United States Court of Appeals, Fifth Circuit 1970
430 F. 2d 199

JOHN R. BROWN, Chief Judge: adjoining upland. To this purpose they
It is the destiny of the Fifth Circuit first applied to the state and local au-
to be in the middle of great, oftentimes thorities for permission to perform the
explosive issues of spectacular public im- work and obtained the conisent or ap-
portance. So it is here as we enter in proval of all such agencies having ju-
depth the contemporary interest in the risdiction to prohibit the work,....
preservation of ouWr vironment.- By an Landholders then applied to the Corps
.injunction requiri2g- the issuance of a of Engineers for a federal permit to
permit to fill in eleven acres of tidelands perform the dredging and filling.
in the beautiful Boea Ciega Bay in the [There were many public obL
St. Petersburg-Tampa, Florida area for jections to the granting of
use as a commercial .mobile trailer park, this permit. ' The United States
the District Judge held that the Secre- Fish and Wildlife Service, Department
tary of the Army:and his functionary, of the Interior, also opposed the dredg-
the Chief of Engineers, had no power to ing and filling because it "would have
consider anything except interference a distinctly harmful effect on the fish
with navigation. There being no such and wildlife resources of Boca Ciega
obstruction to navigation, they were or- Bay."
dered to issue a permit even though the .
permittees acknowledge that "there washe Secretary of the Army denied the
evidence before the Corps of Engineershe Secretary of the Army d enied the
sufficient to justify an administrative
agency finding that [the] fill would do cause issuance of the requested permit:
damage to the ecology or marine life on 1. Would result in a distinctly
the bottom." We hold that nothing in harmful effect on the fish and wildlife
the statutory structure compels the See- resources in Boca Ciega Bay,
retary to close his eyes to all that others 2. Would be inconsistent with the
see or think they sge.ek purposes of the Fish and Wildlife Co-
ordination Act of 1958, as amended (16
U.S.C. 662),
Genesis: .The Beginning 3. Is opposed by the -Florida Board
of Conservation on behalf of the State
In setting the stage we draw freely on of Florida, and by the County Health
the Government's brief. This suit was Board of Pinellas County and the
instituted by Landholders, Zabel and Board of County Commissioners of
Russell, on May 10, 1967, to compel the Pinellas County, and
Secretary of the Armry to-issue a permit
to dredge and fill in the navigable waters 4. Would be cont to the public
of Boca Ciega Bay, in Pinellas County
ne.r St. Petersburg, Florida. Landholders then instituted this suit
Landholders own land riparian to Bdca to review the Secretary's determination
Ciega Bay, and adjacent land underly- and for an order compelling him to issue
ing the Bay. It is navigable water of the a permnit.- 7hey urged that the proposed
United States on the Gulf side of Pinellas work wo.ld not hinder navigation and
Peninsula, its length being traversed by that the Secretary had no authority to
the Intracoastal Waterway, which enters refuse the permit on other grounds.
Tampa Bay from Roca Ciega Bay and is They acknowledged that "there was evi-
thus an arm of the Gulf of Mexico. The dence before the Corps of Engineers suf-
Zabel and Russell property is located' ficient to justify an administrative agen-
about one mile from the Intracoastal Wa- cy finding that our fill would do dam-
terway. age to 'the ecology or marine life on the
bottom." The Government urged lack of
Landholders desire to dredge and fill jurisdiction and supported the denial of
on their property in the Bay for a trailer the permit on authority of � 10 of the
park, with a bridge or culvert to their Rivers and Harbors Act of March 3,

164

1899, 30 Stat. 1121, 1151, 33 U.S.C.A. ther gencrally or specifically what those
� 403, giving the Secretary discretion to conditions may be. The question for us
issue permits and on the Fish and Wild- is whether under 'the Act the Secretary
life Coordination Act of March 10, 1934, may include conservation considerations
48 Stat. 401, as amended, 16 U.S.C.A. as conditions to be met to make the pro-
�� 661 and 662(a), requiring the Secre- posed project acceptable. Until now
tary to consult with the Fish and Wild- there has been no absol0te answer to
life Service and state conservation agen- this question. In fact, in most cases
cies before issuing a permit to dredge under the Rivers and Harbors Act the
and fill. Courts have been faced only'with nayiga-
The District Court held that it had tion problems." [Citations omitted.,
jurisdiction, that the Fish and Wildlife One very big exception is United
Coordination Act n o authority States ex rel. Greathouse v. Dern, 1933,
eoordnation Act was not auytheority for ,289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250.
denying the permit,.
The Court granted summary judgment There petitioners sought a writ of man-
for Landholders and directed the Secre- dam t o compel the Secretary of War
f ~y of the Army to issue the permit. and the Chief of Engineers to issue a
t.yofT h is appeal followed. permit to build a wharf in navigable
~This appeal followed.~~ ~waters. The Secretary, specifically find-
The question presented to us is wheth- ing that it would not interfere with navi-
er the Secretary of the Army can refuse gation, denied the permit. The Supreme
to authorize a dredge and fill project in Court held that mandamus would not is-
navigable waters for factually substan- sue because the allowance of mandamus
tial ecological reasons even though the "is controlled by equitable principles
project would not interfere with naviga- * * * and it may be refused for rea-
tion, flood control, or the production of sons comparable to those which would
power. To answer this question in the lead a court of equity, in the exercise of
affirmative, we must answer two inter- a sound discretion, to withhold its pro-
mediate questions affirmatively. (1) tection of an undoubted legal right."
Does Congress for ecological reasons The reason was that the United States
have the power to prohibit a project on had plans to condemn petitioners' land
private riparian submerged land in navi- for use as a means of access to a pro-
gable waters? (2) If it does, has Con- posed parkway. Allowing a wharf to be
gress committed the power to prohibit built would increase the expense to the
to the Secretary of the Army? government since it would increase the
IV market value of the land and would re-
quire the government to pay for tearing
Prohibiting Obstructions to Navigation down the wharf. The importance of
Greathouse is that it recognized that the
The Saction of the Chief of ngineers Corps of Engineers does not have to wear
and the Secretary of the A1rmy under navigational blinders when it considers a
attack rests immediately onl the Rivers permit request. That there must be a
nand Harbors Act, 33 U.S.C.A. � 403, reason does not mean that the reason has
which declares that "the creation of any to be navigability.
obstruction * * * to the navigable But such circuity is not necessary.
capacity of any of the waters of the Governmental agencies in executing a
inited States is prohibited." -. particular statutory responsibility ordi-
The Act itself does not put any narily are required to take heed of, some-
restrictions on denial of a permit or the times effectuate and other times not
reasons why the Secretary may refuse to thwart other valid statutory governmen-
grant a permit to one seeking to build tal policies. And here the government-
structures on or dredge and fill his own wide policy of environmental conserva-
hproperty. Although the Act has always tion is spectacularly revealed in at least
b'cInI read las tempering the outlright pro- two statutes, The Fish and Wildlife Co-
hibition by the rule of reason against ar- ordination Act and the National En-
bitrary action, the Act does flatly forbid vironmental Policy Act of 1969.
the obstruction. The administrator may
grani. permission on conditions and con- [4] The Fish and Wildlife Coordina-
versely deny permission when the situa- tion Act clearly requires the dredging
tion does not allow for those conditions. and filling agency (under a governmental
BJut the statute does not prescribe ei- permit), whether public or private, to
consult with the Fish and Wildlife Ser-

165

vice, with a view of conservation of S.Rep. No. 1981, 85th Cong.2d Sess.
wildlife resources. If there be any ques- (July 28, 1958). 1958 U.S.Code Cong.
tion as to whether the. statute directs the & Admin.News, pp. 3446, 3448, 3450.
licensing agency i(t!b-'.Corps) to so con-
licensuit it can quicky (tisCorps) to so con- This Report clearly shows that Con-
sult it can quickly.,be'dispelled. Common
sense and reason dictate that it would be gress intended the Chief of Engineers.
incongruous for Congress, in light of the and Secretary of the Army to cons@!'1
fact that it intends' Conservation to be with the Fish and Wildlife Service before
considered in private dredge and fill op- issuing a permit for a private dredge and
erations (as evidenced by the clear word-
ing of the statute), not to direct the only
federal agency concerned with licensing The meaning and application of the
such projects both to consult and to take i Act are also reflected by the actions of
such factors into aeournt. the Executive that show the statute au-
*. The second 'proof that the Secir- thorizes and directs the Secretary to con-
tary is directed afid' authorized by the suit with the Fish and Wildlife Service
Fish and Wildlife Coordination Act to in deciding whether to grant a dredge
consider conservation is found in the leg- and fill permit.
islative history. The Senate Report on In a Memorandum of Understanding
the Fish and W~ild fe Coordination Act between the Secretary of the Army and
states: .. .. the Secretary of the Interior, it is pro-
"Finally, the inursery and feeding vided that, upon receipt of an application
grounds of valuable crustaceans, such for a permit to dredge or fill in navigable
as shrimp, as well as the young of waters, the District Engineer of the
valuable marine fishes, may be affect- Corps of Engineers concerned is required
ed by dredging,-illing, and diking op- to send notices to all interested parties,
erations often carried out to improve including the appropriate Regional Direc-
navigation and provide new industrial tors of the Federal 'Water Pollution Cii-
or residential. .. trol Adihinist'ration, the Fish and Wild-
- * *. * e ,t * life Service, the National Park Service
Existing law haS questionable appli- and the appropriate state conservation,
cation to plrojects of the Corps of Engi- resources, and water pollution agencies.
neers for the dredging of bays and es- The District Engineer is given the initial
tuaries for navigation and filling pur- responsibility of evaluating all relevant
poses. More seriously, existing law factors in reaching a decision as to
has no application whatsoever to the whether the particular permit involved
dredging and filling of bays and estu- should be granted or denied. The Memo-
aries by private interests or other non- randum also provides that in case of con-
Federal entities in navigable waters flicting views the ultimate decision shall
under permit from the Corps of Engi- be made by the Secretary of the Army
neers. This is a particularly serious after consultation with the Secretary of
deficiency from the standpoint of com- the Interior.
mercial fishing interests. The dredg- This Executive action has almost a vir-
ing of these bays and estuaries along tual legislative imprimatur from the-No-
the coastlines to aid navigation and vember 1967 Report of the House Com-
also to provide land fills for real estate mittee on Merchant Marine and Fish-
and similar developments, both by Fed- eries, in 'reporting favorably on a bill
eral agencies or other agencies under to protect estuarine areas which was
permit from the Corps of Engineers, later enacted into law. As a result of
has increased tremendously in the last the effective operation of the Interde-
5 years. Obviodsly, dredging activity partmental Memorandum of Understand-
of this sort has a'profound disturbing ing, the Interior Department and the
ing, the Interior Department and the
of this sort has a profound disturbing Committee concluded that it was not
effect on aquatic life, including shrimp necessary to provide for dual permits
and other species of tremendous sig- from Interior and Army.
nificance to the commerical fishing in-
~:.'�;:~ ~' ~The intent of the three branches has
dustry. The bays, estuaries, and relat- been unequivocally expressed: The Sec-
ed marsh areas are highly important as retary must weigh the effect a dredge
spawning and nursery grounds for and fill project will have on conservation
many commerical species of fish and before he issues a permit lifting the Con-
shellfish." gressional ban.

The parallel of momentum as the three Waters and Wetlands: How the Corps
branches shape a national policy gets of Engineers Can Help Prevent Their
added impetus from the National En- Destruction and Pollution. (H.Rep. No.
vironmental Policy Act of 1969, Public 91-917, 91st Cong. 2d Sess. (1970)) The
Law 91-190, 42 U.S.C.A. �� 4331-4347. first section stifles any doubt as to
This Act essentially states that every how this part of Congress construes the
federal agency shall consider ecological Corps' duty under the Rivers and Har-
factors when dealing with activities bors Act. The section traces the histori-
which may have an impact on man's cal interpretation of the Corps' power
environment. under the Rivers and Harbors Act. It
Although this Congressional commends the Corps for recognizing eco-
command was not in existence at the logical considerations under the Act to
time the permit in question was denied, protect against unnecessary fills and
the correctness of that decision must be cites the instant case. But following
determined by the applicable standards the temper of the times, the report
f today. . . Me by bold face black type cautions against
hold that while it is still the action of the any easy overconfidence afid charges the
Secretary of the Army on the recommen- Corps with ever-increasing vigilance.
dation of the Chief of Engineers, the
Army must consult with, consider and [8] When the House Report and the
receive, and then evaluate the recommen- National Environmental Policy Act of
dations of all of these other agencies ar- 1969 are considered together with the
ticulately on all these environmental fac- Fish and Wildlife Coordination Act and
tors. In rejecting a permit on non-navi- its interpretations, there is no doubt that
gational grounds, the Secretary of the the Secretary can refusedn conservation
Army does not abdicate his sole ultimate grounds to grant a permit under the
responsibility and authority. Rather in Rivers and Harbors Act.
weighing the application, the Secretary
of the Army is acting under a Congres- VII
sional mandate to collaborate and consid-
er all of these factors. Conclusion
To judge the ebb and flow of the na- Landholders' contentions fail on all
tional tide, he can look to the Report of grounds. The case is reversed and since
the House Committee on Government Op- there are no questions remaining to be
erations. Although this perhaps lacks resolved by the District Court, judgment
traditional standing of legislative his- is rendered for the Government and the
tory, it certainly has relevance somewhat associated agent-defendants.
comparable to an Executive Commission - Reversed and rendered.
Report. On March 17, 1970, it approved
and adopted a Report, based on a study
made by its Conservation and Natural
Resources Subcommittee, entitled Our

With the enactment of NEPA and �404, environmental
factors moved to the forefront in permit deliberations.
The following Corps of Engineers' regulations present the
current criteria.

167

CORPS OF ENGINEERS PERMIT GUIDELINES

33 C.F.R. �209.120 (1976)

(fY~~cnea~ Pi~ces for Evaluating' (9 Olicies on particjaar iactors oY
Permit Applications. (1) The declsiol~f b.oolksfderatiofl. in applyifigy~he general
whether to Issue a permit will be base~d:& Policies cited above to tho'evaluation of
on an evaluation of the probable InmPact. - a Permit application. Corp4;,g Engineers
of the proposed structure or work and cfficl~.s will also consider'itbe following
Iti intender use on the publi~c interest, politie,- when they are applicable to the
Evaluation of the' probable impact that; specitic application:
the prop sd structure or work may have ,DI'interference with adj~acent prop-
on. the public Interest requires a carefUl.,. eties or water resource Projects. Au-
weighing of alt~~fcosthat become -thorization of work or structures by the
relevant In eacfi; particula-r case, The -Department of the Army does not convey
benefit that reasonably may be expecte~d' a9 property right, nor authorize any in-
to accrue ftokwlb Thproposal must be, .0y t property or Invasion of other
balancedl agaliin 1t6'reasonably foresees,:
able dctrlments.,Tlhgdecision whether to . () (a) Bec-ause a landowner has the
alathorize a prtlb~l and, if authorized.. general r~iht to protect his property
the conditions under which it will be all?'_ ~r6xo erosion, applications to erect pro-
lowed to occur, are~terlefore determined tciesreue
liy the outconi6,oftje neral b-ilancin~ favorable consideration. HOW-ever, fj7
Prces (e.g., -see t'0940)~ Gu Idellnes for, protectiVe structure -may, cau~e
Assessment; of xcipomic, Social and~ to the property of others, the Djsqq~
E nvironmental -'Ilets~t of civil Works- Engineer will so advise the applic
Projects). Ta ostnshould i'efWOt~ and linform. him of possible'alternpfjv,
the national con6Mrnfol both'JrtcIk mietoids of protecting his property. -much
and utilization etfimportant reo advice will be given in terms of genlor,
All. factors that ~i~'a be t6 .ev guidance only so as not to compete wt~
private engineering firms nor required a.
4fhre fcto s coot due u'sd'bf government resources.-A'sig'.
ICe fActos arcn ervtiron, ecntil nificant. probability of resulting darn4'9
001ers histhetld yeera l endwro ld-t to nearby properties can be a basls
lif vlus, i~iae pevnton denial' of an application.
land-use ~ nvgtol e-(b) A, landowner's general right off s.
rsatlcmv~at'e~r~ii~p~ivter cualty, andcess to navigable waters is',subject to tliq:
in general. the'n~e0ds and welfare~o rhotk similar rights of access 'held by nearb-i
people. -No pernilt Will be granted"unless~ landowners and to the general p~ublics:
ItsIsuaceis f~lin4 to Jke in the public right of navigation on the water surface.
Interstisace. Proposals which create undue Interfe;,4
(2) Tefloiggnrlcteiwilence with access to, Or use of. navigable
Thefollow Ing generaluacriteriaevell waters Will generally not receive favp.
beplcsdednte vuatioon:eer able. consideration.
aj h ea~ dtn ftePublicain (ii) (a) Where it is f ound that the WorL:,
pil prvat ned lre the proposed struc- for which -a permit is desired may late?.
tund or~xt need fere with a~ Proposed civil works projecti
~~~~raItyr of worgk.rori of the Corps of Engineers, the applicant'
--i) aTherdiative lofcusions and etods to and the P-Irty or parties responsible for
..coplithe objecntive lofain admthepoosdst fulfillment of the requirements of Ioc~ji
strcteomls h obrctv wofh rk.se cooperation should be apprised in writ-~
1fi1' The extent and permanence of Ing of the fact and of thre Possibility that
fli be efiialandordetriinental. ef- a Civil works project which may be con4
ecets that the proposed structure or work tihtncsiae Its r-eoval e
jv~:,k may have'oni the public and pri- ork ih ecessitte ~li t s reov
Vat-. use's to which the area is suited. rcntuto
fly Ti e robbleimactofeach pro- (M-Proposed activities which arein
1v);, Iiratintthe probalemactv ef- the area of a civil works project which
fect cnrelatedon tother exislting ef-n exists or is under construction will tli
feeticreated. bytue othr workting the evaluated to insure that they are corn-
antic~patd struetuas or worc In thePatible with the purposes of the project,
~~ nertiarea. ~~~~~~~(2) Non-Federal drcdging for navi-
gation. (1) The benefits which an au-a
(4) The District Engineer shall con-z thorized Federal navigation project is in-
Sider the re.commendations of the appro- tended to produce will often require
priate Regional Director of the Bureau similar 'and related operations by non-
'Of Sport Fisheries and Wildlife, the Re-Feeaagniseg.drgngn ce5
gional Director of the National Marine F ederal togdockian (eg.dredging anaciltess.
.Flsherles Service of the National Oceanic odepinsuhachannel to- dcknd etigfclte-
-and Atopei Administration, the or despondto suhe Feeal channect to.Col
.Regional Administrator of the Environ- ThesponntonheFederal prjctivte wid epcth)
mental Protection Agency, the local rep- Thsierdb Codrpslo activinees w~iall be on
1'esentative of the Soil Conservation plsidgterb cornstrctof Engier olinalsntt.
-Servlce of the Detrartment of Ag-ricul-Plnigtecsruioad ine;2
'ture. and the head of appropriate State
agencies in adi~iniatering the policies
and proceduires &` the regulation.

168

ce of Federal navigation projects and, erosion, or storm damage,,Such wetlands
nile mainimum practical extent, will often include barrier beaches, islands,
coordinated With interested Federal, rees and bars
te, regional and local agencies and (e) Wetlands which serve as valuable
te general public simultaneously with storage areas for storm and flood waters;
tile associated Federal projects. Non- and
,ederal activities which are not so co- (f) Wetlands which are prime natural
ordinated will be individually evaluated recharge areas. Prime recharge areas are
<1 accordance with paragraph (f )'of this- locations where surface and ground
section. In evaluating the public interest water are directly interconnected.
n connection with applications -for per- (iii) Although a particular alteration
plits for such coordinated operations, of wetlands may constitute a minor
equal treatment will, therefore, be ac- change, the cumulative effect of nu-
corded to the fullest extent possible'to merous such piecemeal changes often re-
bo'h Federal -and non-Federal opera- sults in a major impairment of the wet-
tins. Furthermore, permits for non- land resources. Thus, the particular
Federal dredging operations will contain wetland site for which an application is
conditions requiring the permittee to made will be evaluated with the recogni-
,comply with the same practices or re- tion that it is part of a complete and
aiircments utilized in connection with interrelated wetland.area. In addition,
r .l:,.ted Federal dredging operations with the District Engineer may undertake re-
r.;,pect to such matters as turbidity, wa- views of particular wetland areas, in
ter quality, containment of material, na- response to new applications, and in
ture and location of approved spoil consultation with the appropriate Re-
(tisposal areas (non-Federal use of Fed- gional Director of the Bureau of Sport
trl contained, disposal areas will be in Fisheries and Wildlife, the Regional Di-
nac:ordance with laws authorizing such rector of the National Marine Fisheries
arteas and regulations governing their Service of the National Oceanic and
uae), extent and period of dredging, and Atmospheric Administration, the Re-
otheil factors relating to protection of gional Administrator of the Environ-
eniironmental and ecological values. mental Protection Agency, the local
(ii) A permit for the dredging of a representative of the Soil Conservation
clmnnel, slip, or other such project for Service of the Department of Agricul-
iiavigation will also authorize the peri- ture, and the head of the appropriate
odfic maintenance dredging of the proj- State agency to assess the cumulative
cel. Authority for maintenance dredging effect of activities in such areas.
will be subject to revalidation at regular (iv) Unless the public interest re-
Intervals to be specified in 'the permit. quires otherwise, no permit shall be
.. . hited for work In wetlFixds identiied
(3) Effect on wtetlalnds. (i) Wetlands 'as important by subparagraph (3) (ii), of
are those land and water areas subject this paragraph, unless the District En;gi-
to regular inundation by tidal, riverine, neer concludes, on the basis of the analy-
or lacustrine flowage. Generally included sis required in paragraph (f) of this sec-
are inland and coastal shallows. marshes, tion, that the benefits of the proposed
mudflats, estuaries, swamps, and similar alteration outweigh the damage of the
areas in coastal and inland navigable wetlands resource 'and the' proposed
,Waters. Many such areas serve important alteration is necessary to realize those
Purposes relating to fish and wildlife, (a) In e valuat ing whether t
(a) 'In evaluating whether a particu-
recreation, and other elements of the lar alteration is necessary, the District
general public interest. As environ- Engineer shall primarily consider
mentally vital areas, they constitute a whether the proposed activity is de-
Productive and v. nuable public resource, pendent upon'the wetland resources and
the unnecessary alteration or destruc- environment and whether feasible al-
tion of which should be discouraged as ternative sites are available.
contrary to the public-interest. (b) The applicant must provide suf-
(ii) Wetlands considered to perform ficlent data on the basis of which the
functions important to the public inter- availability of feasible' alternative sites
est include: can he evaluated.
(a) Wetlands which serve important (v) In accordance fwith the policy ex-
natural biological functions, including pressed in paragraph (f) (3) of this see-
food chain production, general habitat, tion, and with the Congressional policy
and nesting, spawning, rearing and rest- expressed in the Estuary Protection Act,
ing sites for aquatic or land species; - PL 90-454, state regulatory laws or pro-
(b) Wetlands set aside for study of the grams for classification and nrotection of
aquatic environment or as sanctuaries wetlands will be given great weight. (See
or refuges; also paragraph (g) (18) of this section).
(c) Wetlands contiguous to areas (4) Fish and wildlffe. (i) In accord-
listel in paragraph (g) (3) (ii) (a) and once with the Fish and Wildlife Coordi-
(b) of this section, the destruction or 'nation Act (see paragraph (c) (5) of this
alteration of which would affect detri- section) Corps of Engineers officials will
mentally the natural drainage charac- in all permit cases, consult with the Re-
teristics, sedimentation patterns, salin- gional Director, U.S. Fish and Wildlife
ity distribution, flushing characteristics, Service, the Regional Director, National
current patterns, or other environmental Marine Fisheries Service, and the head
characteristics of the above areas; .. of the agency responsible for fish and
(d) Wetlands which are significant in; . wildlife for the state in which the work is
shielding other areas from wave .action,u! to be ,,. rforined, with a view to the con-
servation of wildlife esource- by pre-

169

'efition of thefr-o~s"iid iagfiaj ue--oa'-fo .sv uch areas as may be established undedr
the work or strtIttiites proposed in a FE'eral law for similar an d.rgated pur-
penrmit application (see paragraphs (1) roses, such as estuarine aid marine
(1) (ii) and J) (21YOf this section). They sanctuaries.
Vill give great wei#ht&to these views on M7) Structures for small boats. As a
fell and wildlife cdniipderatlons inr. eval- matter of policy, in the absence of over-
uating the appligtion. The applicant riding public interest, favorable consid-
will be urged to 'ct y;his proposal-to eration will be generally be given to
eliminate or rnfih 1e'ny damage to such aspolications from riparian proprietors
resources, and in Ap.pDrilate cases the for permits for piers, boat docks, moor-
permit may be coidlol.ed to accomplish. ings, platforms and similar structures for
-tl-:purpose. .;,w- W :' snma!l boats. Particular attention will be
... * .. , ....... . ..... given to the location and general design
(51 Water quazqitt. (i) Apphicctoni~at 1: of such structures to prevent possible ob-
permits for activitipe which may a%,-t stritetions to navigation with respect to
the quality of inaliable waters w1l3:.C both the public's use of the waterway and
evaluated wit fh a view toward complljabt' the neighboring proprietors' access to the
t.~vith aipp.ilcable efluhigt limitations a4 waterway. Obstructions can result from
water qudlil.ty stati 4s during both 't& both the existence of the structure, par-
con s tructi of the' '[0ao
construction and the~n of the Pro- ticulaHy in conjunction with other simi-
~posed anctiv~ity. sy permnit issued lir ffacilities in the immediate vicinity,
may be conditioned to implement water
quality proj~ectionl measureq. and from its inability to Withstand wave
quality protection measures. qnd otherforces which can be en-
a-tIP1 :o.r other forces which can be ex-
(i.) Ii 1torie, scenic, and recreationa. pected ,
evalues. (i) Applications for permits cov-
ered by this regulation may involve areaOeX' (8) Aids to navigation.-1) The placing
which posa;t:ss recognized historic, certl' of non-Federal fixed and floating aids to
tural, scenic, conservation, recreational navigation in a navigable water of Whe
or similar values.,T11 evaluation o' f tha United States is within the purview of
general pu' ll e interest requires that due section 10 of the River and Harbor Act of
consid~eration be given to the effect which 1899. Furthermore, these aids are of par-
the proposed strweture2or, activity ma? ticular interest to the U.s. Coast Guard
have on the enhartement, preservatio, because of their control of marking, light-
or, development of stiuh values. Recognit' ing and standardization of such naviga-
tion of thDo)e vaItsiis often reflected bY tion aids. Applications for permits for in-
State, regional, oR local, land use clasSifl stallation of aids to navigation will,
ications (see paraigrit' (t2 a:) o fiis edC. therefore, be coordinated with the appro-
& , or -by simfi& d& Uon& _io6rF priate District Commander, U.S. Coast
icies. In both cases, action on permit Guard, and permits for such aids will in-
puleations sheioulCd5.lsofar as possible, elude a condition to the effect that the
be c nsistent with, ird avoid adverse ef- permittee will conform to the require-
fct oil, the values 6t;b& urposes for which ments of the Coast Guard for marking,
tlo:;e classlficationl, controls, or policies lighting, etc.
,,re established *.: * ........ - . ..
(il) Specice application of the Bolicy- (9) Outer continental shelf. Artificial
in pragrgraph (g) (6):() of this section, islands and fixed structures located on
applies to: the outer continental shelf are subject to
(et! Rivers named 1i' Section 3 of the the standard permit procedures of this
/icld and Scenic Rivers Act (82 Stat. 906, regulation. Where the islands or strlc-
t6 U.S.C. 1273 et.,seq.), and those pro- tures are to be constructed en lands
nu,ocd for inclusion ds provided by see- which are under mineral lease from the
tIons 4 and 5 of the Act, or by later legis- Bureau of Land Management, Dlepart-
lttion. A. , ment of the Interior, that agency, in co-
(I, IHistoric, culttial, or archeological operation with other Federal agencies,
sites or practices as'rovided' In the Na- fully evaluates the potential effect of the
itanl Hlistoric PrekerVation Act of 1966 leasing- program on the total environ-
[d; Slat. 852, 42 Ut.C.4S21 et seq.) (see ihnat. Accordingly, the decision whether
. Executive Order 115983, May 13, 1971, to iSsue a permit on lands which are
i,;di Statutes iher;eoited,.. Particular at- under mineral lease from the Depart-
t:ftien Shol.id Bla ited toward any ment of the Interior will be limitcd to an
di trlct, site, buildligifstucture, or olject evaluation of the impact of the proposed
.st crl in the NIationlal Register of Historic work on navigation an d national security.
;lac:es. Comnmlenlts regarding suc7h. under- (10) Effect on limits of the territorial
tak ings shall be sought and considered as sea. Structures or work affecting coastal
;.vr,:ided by paragraph (i) (2) (iii) of this waters may modify the coast line or base-
:octiOn. , line from which the three mile belt is
(e Sites included ithe NationalReg- measured for purpm ses of the Submerged
i .try of Natural Landmarks which are Lands Act and International Law. Gen-
,;ul!'ished periodically In the FEDERAL erally, the coast line or base line is the
GIST . I.... line of ordinary low water on the main-
(da Any otheriareas named in Acts of land: however. there are exceptions
UCBegre~s or VPresidential Proclamations where there are islands or low-tide eleva-
::s Nlational Rliver~ i.Nationa1 Wilderness tions off shore. (See the Submerged Lands
ATess, NIatlonal Seashores, NationalRec- Act, 67 Stat 29. US,. Code section
.retlon Areas, .g9 ip.hl Lakeshores, Na- 1301 (c), and United States v. California,
'"tlSnal Parks, Nati4qTi Monuments, and 381 U.S 39 (1905). 382 U.S. 448 (1966)).
All applications for structures or work
affecting coastal waters will therefore be
reviewed specifically to, determine wheth-

1701

er the Coast lnp baseline nTi k cr la established by the Administra-
altered. If it is determlined that'" Iu(i1 V tor, EPA, under authority of section 102
ch~nen niiihtoccur. coordination (a) of the Marine Protection, Research
the Attorney Genero I and the Slctr(fand Sanctuaries Act of,,1972, and will
tile Liepartment of the Interitir is je.' specify the dumping sites, uWing the rec-
quired before final action is taken. .Wb, omnmendatlons of the, Administrator,
District ngineer ill submt adeJ, pursuant to sectin 102(cI of the Act, to
hon~ ~~~~~~~~P oftepoosdwr ndaCp . the extent feasible. (See .40 CFR Part
the plans to the Sqlicitor, Departmento, 220). In 'evaluatfik~ the hted for the
the Interior, Washington, D.C. 20240, and, dumping as required by 'paragraph (f
request~' ht qr ~ cenn-~ (2) (i) of this bectidik, Crsof Engineers
effects of th e' propcsed work on the~o~t,~ officials will consider the potential effect
co~itbiental rigyht,- of the United 'Stq,,f% of a permit denial on navigation, eco-
'Micsv commnents will be included in tht, nomic and industrial development, and
felt of the application. After conipiet'd4~ foreign and domestic commerce of the
of standard processing procedures, tri ntd tts
ifile will be forwarded to the Chipf ol, Unte States."
1,nineers,_The decision Iin the a pho use as disposal sites for discharge or
titln will be mapde by the Secretary of th, upn fdegdmtra ilb
no/ myatrcoriain ihteAttr specifed to the maximum. practicable
nc~~~~~~ General. ~~~~~~~~~~~~~extent in permits for the, discharge or
11 Cnas ncote ate~ca~waer9 dumping of dredged materiajl n.naviga-
wavs connected-to navigable watersb6waeso cenwtr 'ne e
(i)-,N canal omrsimftar artificial waterw A aeso ca aesu~s e
stricted by the Adipnstattator, EPA,.1ni
is ~ubjet to he i~eulator authoitle~.accordance with section 404(c) of, the
discussed int pai'agraph (b) (2) of thi s~ Federal Water Pollutioft Cohtrol Act or
tion if it cons-titutes a navigable water of' section 102(c) of the M(arfine Protection,
tile United States,, or if it is connected to- R s a c , n d S cure Ato172
navig-able waters of the United EStates in.RsacadSntaisAto 92
(iv) Prior to actual Issuimce of permits
a marnner whi-,h affect.- th~ ir eour~c, con- for the discharge 6r dumping of' dredged
dition, or ca]7avity. In all erses the coD- or, fill material In navigable or ocear
nection to navigable watersv of the!- waters, Corps of Engineei~s o ~iiclals wil
Tfnit*,d States requIres a penrIit. Where dieaporaeThgoilArllta
,athe cona itsef coni tedtutes, ealnavigabe tore, EPA, of the intent to so, Issue- per-
atrof th e per ite Splctiola rthes, exltatO mits. If the Regional Administrator
of the perit a~p~ict~on end frther ex-advises, within fifteen days of the advice
ercise of regulatory authority will bejlafteitn oisuta eojcst
aeeO 6cance with the standard procedurea& h suac fte emtth aewl
V ~~~~~f this regulation. ,Vdr all other -canalsFt e Isac ftepris h aewl
the exercise of re'gUtatorv authority IS be~forwarded to the Chief of Enkineers In
restricted to those activities which affect"' accordance with paragraph, Ws of this
thecor~, onitinorcaactyof the- setn for further coordiniation' with
taigale c wtesofrhe, 'Unditiondo capacity the Administrator, EPA, end declaNOPl
Exavigaleswtr of the. latter a nldeSAt4. The report forwarding the case W
lExhanple detV of Vile c~t~ ay nalude the contain an analysis for a deteriminati
ren7ts circu'atlon~,-quality and t -%da'; by the Secretary of the Army that them
of ts atrsesecillyasth -ffect is no economically feasible method 60
ofd wild waters esecaluly and they. ca-' site available other than that to whiSb
tionds or extensions of its configuration.t e R goaAdisrtrobcs.('
also paragraphs (b) (7) and (b) (8)
'.i. ~~~~~~~~~this section.)
(7) Dt~charge of #dredged or ftl ma- (18) Activities in coastal Jone sS
terfal in navigable waters or dumping marine sanctuaries, (I) Applications
of dredged material in ocean waters. D~epartment of the Array authorizationW
(1) Applications for permits for the dis- for activities in the ooastal zones of tholi
charge of dredged br fill material into States having a coastal zone niansS
navigable waters at specific disposal sites ment program appr~oved by the MgO~
will be reviewed in accordance with aedwhresec tof Commerace wil etvag;
guidelines promulgated by the Adminis- ae ihrsett opinewn
trator, EPA, under authority of sectionthtporm No eriw beI'
404(b) of the Federal Water Pollution sued until the applicant has certified
Control AtIfthe EP udlnsaoethat his proposed,, activity compliet
Act. If he EPA uidelins alonewith - the coastal nodne mnanageme4,
prohibit tedesignation of a proposed pormadte pr~raeSa4
disposal site. the economic impact on p o rmadte prvlt W
navigation an anchorage o the failureagency has concurred with the certifica-~
naviga~~~~~~~~~~~~~~tion ohand waiveditoraght tof the faiur
to authorize the use of the proposed dis- pan rhasgraive Its (2 eight to doh soct(on),
posal site In navigable waters will also howeveraphri may, (9) (9 f issuection tbj
be considered In evaluating whether or hecretr, of permtmerc, ob hisse oIf tbO'
not the proposed discharge is in the pub- Sertaryv ofomrce uon apel~his appwcnt-
ha interest. . ~~~~~~~~~finds that the prepased activity' Is con-'
(it) Applications for permits for the sistent with the objeotives of the Coasta
transporting of dredged material for the Z o e M n g dtA.of17 ri;
purpose of dumping It Into ocean waters ZoeMngmen, c f17 r
will be evaluated to determine that the otherwise necessary ,Jil-46 interest Of'
proposed dumping will not unreasonably national security.'
degrade or endanger human health, wel- (ii) Applications for Depaornent of
fare, or amenities, or the marine envi- the Army' authorizationi for adtivitim in-i
ronment, ecological systems, of economic a marine sanctuary. established by the'
'potentialities. in making the evaldation, Secretary of Commerce under auuioritl
Corps of Engineers officials will apply ofscin1071 t e a iePrtclA

Research, and Sanctuaries Act of 1972 aries Act of 1972 and can be carried out
will be evaluated for Impact on the ma- within the regulations promulgated by
rine sanctuary. No permit will be issued. the Secretary of Commerce to control
until the applicant provides a certlfica- activities within the marine sanctuary.
tion from the Secretary of Commerce Authorizations so issued will contain
that the proposed aictivlty is consistent such special conditions as may be re-
with the purposes of Title III of the Ma- quired by the Secretary of Commerce in
rine Protection, Research and Sanctu- connection with his certification.

172

iv. Permit variations.

In addition to the regular permit process, three other
types of permit situations are important. Although the
general precedure anticipates application for the permit
prior to work instigation, after-the-fact permits are utilized
to salvage negligent developers.6 If the activity is within
the traditional navigable waters, or if warranted by the
circumstances, the district engineer will defer permit
processing until legal action has been taken and judgment has
been satisfied.7 The application process follows the standard
procedure for regular permits and the permit is ~he same with
"he addition of any conditions deemed necessary.
A general permit covers certain specifically described
categories of structures and work which cause only minimal ad-
verse environmental impact.9 This type of permit allows those
specified projects to forego further authorization.
The Corps may also extend or renew permits which have
expired prior to the completion of the project. NEPA and the
new regulations create a problem in this situation. 'If the
original permits were issued prior to NEPA's enactment, the
Corps will apply the stricter criteria in the renewal
deliberations. In Banker's Life v. North Palm Beach,469 F.2d
994 (Fifth Circuit 1972), the court allowed the Corps of
Engineers to base renewal of a permit-on new criteria developed
during the five year period between the expiration of the
permit and the renewal application. The developer was
responsible for the lapse of the permit. Thus, projects could
be delayed due to the need for compiling environmental
impact statements and halted in midstream if the renewal permit
is denied.

6. 33 C.F.R. �209.120(c) (1) (iv) (1976).

7. 33 C.F.R. �209.120(g) (12) (ii) (1976.).

8. 33 C.F.R. �209.120(g) (12) (iii) (1976).

9. 33 C.F.R. �209.120(i) (ix) (1976).

173

V.* Sanctions and penalties

A violation of the �10 or �404 permit requirements
results in civil or criminal penalties established by
statute. In addition to these penalties, injunctions,
especially those issued during construction, may cost
developers substantial sums due to lost time, interest on
loans, and completion date penalties. The threat of
these penalties and the suits brought to enforce them may,
therefore, chill the development of the coastal areas.

174

THE RIVERS AND HARBORS ACT OF 1899

33 U.S.C. �406

� 406. Penalty for wirolgful construction of bridges, piers,
etc.; removal of structures
l;:very person alnid every corl)oration that shall violate any of the
prvisionls of sections 401, 40',, and 404 of this title or any rule or
rl llallion made by the Secrelary of the Army in pursuance of the
pirovisions of section 404 of this title shall be deemeed guilty of a
misdemeanlor, and on conviction thereof shall be punished by a fine
not ex'eedirlg $2,500 nor less thanl $500, or by imprisonment (in the
eIse of a natural person) not exceerling one year, or by both such
punishments, ill the discretion of the court. And furl.her, the re-
moval of any structures or parts of structures erected in violation
of the provisions of the said sections may be enforced by the injunc-
tion of any district court exercising jurisdiction in any district in
which such structures may exist, and( proper proceedings to this end
may he instituted under the direction of the Attorney General of the
tln it er States.

THE FEDERAL WATER POLLUTION CONTROL ACT

33 U.S.C. �1319
(Supp. II, 1972)

� 1319. Enfocemrent-State enforcement; compliance orders
(a) (1) Whenever, on the basis of any information available to him,
the Administrator finds that any person is in violation of any condition
or limitation which implements section 1311, 1312, 1316, 1317, or 1318
of this title in a permit issued by a State under an approved permit pro-
g:am under section 1342 of this title, he shall proceed under his authority
in P,aragraph (3) of this subsection or he shall notify the person in alleged
violation and such State of such finding. If beyond the thirtieth day after
the Administrator's notification the State has not commenced appropriate
enforcement action, the Administrator shall issue an order requiring such
person to comply with such condition or limitation or shall bring a civil
action in accordance with subsection (b) of this section.
(2) Whenever, on .the basis of information alailable to him, the Ad-
ministrator 'finds that violations of permit conditions or limitations as
set forth in paragraph (1) of this subsection are so widespread that such
violations appear to result from a failure of the State to enforce such
permit conditions or limitations effectively, he shall so notify the State.
If the Administrator finds such failure extends beyond the thirtieth t.ly
after such notice, he shall give public notice of such finding. During the
period beginning with such public notice and ending whean such State
satisfies the Administrator that it will enforce such conditions and limita-
*tions (hereafter referred to in this section as the period of "federally as-
sumed enforcement"), the Administrator shall enforce any permit condi-
tion or limitation with respect to any person-
(A) by issuing an order to comply witth 'uch condition or
limitation, or
(B) by bringing a civil action under subsection (b) of this section.
(3) Whenever ob the basis of any information available to him the
Administrator finds that any person is in violation of section 1311. 3312,
1316, 1317, or 1318 of this title, or is in violation. of any p"-mit con-

175

dition or limitation implementing any of such sections in a permit issuea
under section 1342 of this title by him or by a State. he shall issue an
order requiring such person to comnply with such section or requirement,
or he shall bring a civil action in accordance with subsection (b) of this
section.
(4) A copy of any order issued under this subsection shall be sent
immediately by the Administrator to the State in which the violation
occurs and other affected States. Any order issued under this subsection
shall be by personal service and shall state with reasonable specificity
the nature of the violation, specify a time for compliance, not to exceed
thirty days, which the Administrator determines is reasonable, taking
into account the seriousness of the violation and any good faith efforts
to comply with applicable requirements. In any case in which an order
under this subsection (or notice to a violator under paragraph (1) of
this subsection) is issued to a corporation, a copy of such order (or
notice) shall be served on any appropriate corporate officers. An order
issued under this subsection relating to a violation of section 1:18 of this
title shall not take effect until the person to whom it is issued has had
an opportunity to confer with the Administrator concerning the alleged
violation.
Ci'il actions
(b) The Administrator is authorized to commence a civil action for ap-
propriate relief, including a permanent or temporary injunction. for any
violation for which he is authorized to issue a compliance order under
subsection (a) of this section. Any action under this subsecfion may be
brought in the district court of the United States for the district in which
the defendant is located or resides or is doing business, and such court
shall have jurisdiction to restrain such violation and to require compli-
ance. Notice of the commencement of such action shall be given immedi-
ately to the appropriate State.
Criminal penalties
(c) (1) Any person who willfully or negligently violates section 1311,
~i81, 13i6, 1317, or 131-8 of this title, or any permit condition or limita-
tfao ifi/mPl'ementinag any of such sections in a permit issued under section
1342 of this title by the Administrator or by a State, shall he punished by
a fine of not less than $2.500 nor more than $25,000 per day of violation,
or by imprisonment for not more than one year. or by both. If the con-
viction is for a violation committed after a first conviction of such pirson
under this paragraph, punishment shall be by a fine of not more than
$50,000 per day of violation, or by imprisonment for not more than two
years, or by both.
(2) Any person who knowingly makes any false statement, representa-
tion, or certification in any application, record, report, plan, or other
document filed or required to be maintained under this chapter or who
falsifies, tampers with, or knowingly renders inaccurate any monitoring
device or method required to be maintained under this chapter, shall upon
conviction, be punished by a fine of not more than $10,000, or by im-
prisonment for not more than six months, or by both.
(3) For the purposes of this subsection, the term "person" shall mean,
in addition to the definition contained in section 1362(5) of this title,
any responsible corporate officer.

Civil penalties
(d) Any person who violates section 1311. 1312, 1316, 1317, or 1318
of this title, or any permit condition or limitation implementing any of
such sections in a permit issued under section 1342 of this title by the
Administrator, or by a State, and any person who violates any order issued
by the Administrator under subsection (a) of this section, shall be subject
to a civil penalTy not to exceed $10!,000 per day of such violation.
State liability for judgmenln mind expenses
(e) Whenever a municipality is a party to a civil action brought by the
United Slates under this section, the State in which such municipality is
located shall be joined as a party. Such State shall be liable for payment
of any judgment, or any expenses incurred as a result of complying with
any judgment, entered against the municipality in such action to the ex-
tent that the laws of that State prevent the municipality from raising
revenues needed to comply with such judgment.

176

UNITED STATES v. SUNSET COVE, INC.

United States Court of Appeals, Ninth Circuit 1975
514 F. 2d 1089

PIER CURIAMi: Sunset's efforts to establish some sort of
The district court ordered the remnoval estoppel against the Portland I)istrict of
of about 1760 lineal feet of riprap (rock the United States Army Corps of Engi.
use(l for construction foundations) and neers. Tie court correctly found no ha.
fill material from a sandspit at the sis for stoppe Sunset was acting al
mouth of the Necanicurn River. Sunset its peril when, without permission it un-
('Cove, Inc., the developer of the sandspit, Xdertook to make improvements which ef
appeals. The judgment is affirmed as fected permanent changes in the river
modif1'ied. channel and in its course.
Sunset, apparently acting upon its be- In allowing the government's prayer
lief that the Necanicum River was not a for relief, the district court ordered thl
navigable stream within the mneaning of total removal of the illegal landfill.
33 U.S.C. � 403, attempted to fill and Such an operation is, as a practical malt.
stabilize the shoreline of a tract of land ter, far beyond the resources of Sullsct
it had acquired from the city of Seaside, or its principals. Here, we believ! th,.
without requesting authorization from court might have tempered the law withl
the Secretary of the Army. a touch of equity.
Because of seasonal movement of the The judgment should be Inodified to
Necanicum channel and the migratory require the removal of as much of tlhe
character of the shoals and san(lbars riipralp as will permit nature, in a reason.
within the area of its confluence with able period of time, to take its ceurse,
the sea, the sandspit in question has his- and approxinmately re-establish forler
torically tended to expand and retract up Lopographic conditions. The manner of
and down the coast from north to south. removal, with the above stantlard as 'a
In recent years northwest expansion has guideline, should be supervised by thle
preponderated. Sunset acquired whatev- Chief of Engineers or his designee, plir.
er title the city had to the sandspit dur- suant to that officer's statutory responsi.
ing one of its more northerly extensions. bilities pertaining to navigable waters,
Sunset then undertook to stabilize the In all other respects, the judgment of
sandspit against further erosion by the the district court is affirmed.
emplacement of riprap and by filling antd The (listrict court may stay its jlde.
elevating the surface to create building ment, if it sees fit, for a reasonable lille
sites. to allow the defendant to apply to the
The district court, in findings of fact Chief of IEngineers for an after-tll-f;mt
which are not clea 'y erroneous, found permit to cover any part of the ilevillvl
the Necanicum to be navigable antl Iv construction the Chief of Engineers mantl
cated the mean high-water line at a level recommend for alpproval. Sec 33 C..I.
that effectively declared the major parl � 209.120(g)(12)(ii)(b) (1974).
of Sunset's fill to be in violation of '3:l Affirmed in part; modified in pat
IU.S.C. � 403. and remanded.
Substantial trial time was devoted tn

In United States v. Moretti, Inc. (Moretti II), 526 F. 2d 1306 (1976),
the court held that Joseph Moretti was not personally liable for the costs
of restoring the dredged and filled areas, citing United States v. Sexton
Cove, supra.. The Rivers and Harbors Act of 1899 does not authorize
personal liability yet Congress, in the Federal Water Pollution Control Act,
extended sanctions to include responsible corporate officers. Thus a
violation of 404 could result in criminal or civil penalties for
corporate officers.

177

vi. State Interaction in the Federal Regulatory Scheme

With the increase in areas subject to the Corps of
Engineers' regulations, thought should be given to the
repercussions for state and local governments. If the state
does not regulate coastal development, the federal government
will exercise substantial control in the coastal region and
the state will have little veto power. Few states would
enjoy such a position. on the other hand, when the state has
its own development control system, the Corps allows for
state input into the permit granting process as is provided
in the Corps' regulations which follow. Under these cir-
cumstances, the state may have substantial influence over
the federal granting of permits.

17-8

CORPS OF ENGINEERS PERMIT GUIDELINES

33 C.F.R. �209.12Q(f1(3) (1976)
(3) Permits will not be issued where and procedures of this regulation. In the
certification or authorization of the absence of overriding national factors of
proposed work is required by Federal, the public interest that may be revealed
ESiate, and/or local law and that certifi- during the subsequent processlna of the
c:atoio or authorization has been denied. permit application, a permit will gener-
Itilial processing of an application for ally be issued following 'receipt of a
. De)partment of the Army permit will favorable State determination provided
i;jl ceed until definitive action has been the concerns, policies, goals, and re-
;tl..n by the responsible State agency quirements as expressed in paragraphs
io g.rant or deny the required certifica- (f) (1) and (2), of this section, the
tiwn natdl/or authorization. Where the guidelines (40 Cli'R Part 230), and the
(. qiuh'd State certification and/or au- following statutes have been follolwed
t-rijzation has been denied and proce- and considered: the National Environ-
dotres for reconsideration exist, reason- mental Policy Act; the Fish and Wildlife
alie time not to exceed 91) days will be Coordination Act: t!le His torical and
,al!owed for the applicant to attempt to Archaeolaic Preservation Art the
National Historic Preservation Art: the
resolve the problem and/cr obtIf in re- statEndangered Species Act; the Coastal
consideration of the denial. If the State Zpne Management Act Mrine Pro-
drleidl of authorization cannot be thus tection, Research, and Sanctuarics Act
r solvcd, the application will be denied of 1972; and the Federal Water Pollution
in accordance with paragraph (p) of ' Control Act (see paragraph (c) of this
this section. section).
'i) Where officially adopted State, -' (iv) If the responsible State agency
regional, or local land-use classifica- fails to take definitive action to grant or
tions, determinations, or policies are ap- deny required authorizationa or to fur-
Plicable to the land or water areas nish comments as provided in subpara-
under consideration, they shall be pre- , graph (3) (i) of this paragraph within
Sited to reflect:locgi factors of the pub- six months of the isuapfceof the public
lie interest and Wiall' be considered -in'i notice, 'the District ' ,%.xigineer shall
addition with the :tr:national factors process the applicatiobi t',:a conclusion.
of the publiC interest identified in'pa'ia yThe Dl:trtict A : '":may, in
graph (f) (1) of this section. those States with' onge tate permit
(ii) A proposed activity in a naviga- .prqgrams for work or strucbtres in ravi-
ble water may result in conflicting c0bI; gable waters of the United. tates or the
ments from several agencies within the discharge of dredged or fil material in
same State. While many States have navigable waters, enterIo an agree-
designated a single State agency or in- nient with the States to'4i.tlY process
dividual to provide a single and coordi- and evaluate Departnteat oZy the Army
noated State position regarding pending andgState permit applications. This may
permit applications, where a State has include' the issuance if.: joint public
not so designated a single source, Dis- notices; the conduct of joint public hear-
trict Engineers will elicit from'the Gov- ings, if held; and the joint review and
ernor an expression of his views and de- anilysis of information and comments
sires concerning the application (see developed in response to the public
also paragraph (j) (3), of this section) notice, public hearing, the environmental
or, in the alternative, an expression from as'sesmnent and the environmental im-
the Governor as to which State agency pact statement (if necessarY the Fish
represents the official State position in and Wildlife Coordination-Act, the His-
this particular case. Even if official certi- torical and Archaeological Preservation
fication and/or authorization is not re- Act, the National Historic Preservation
quired by State or Federal law, but a Act, the Endangered Species Act, the
State, regional, or local agency having Coastal Zone Management Act, the
jurisdiction'or interest over the particu- Marine Protection, Research, and Sanc-
lar activity comments on the application. tiaries Act of 1972, and' the Federal
due consideration shall be given to those Water Pollution Control Act. In such
offilal views as a reflection of local fac- cases, applications for Department of
tors of the public interest. the Army permits may be processed con-
(iii) If a favorable State determina- currently with the processing of the
tion is received, the District Engineer State permit to an indepeident conclu-
will process the application to a con- sion and decision'by, the District En-
clusion in accordance with the policies gineer and appropriate stata.ency:.

179

Although these regulations eliminate some of the
potential federal/state conflicts, criticism is still prev-
alent concerning expansion of the Corps' permit program and
its duplication in the states. As is illustrated in the
following section, many states have permit requirements
which result in an applicant having to file two separate
applications for a single project. Often the Corps will
begin processing the federal permit prior to the state's
decision.l0 Thus, if the state denies the permit; the Corps
has done needless work. Such a dual system results in an
unnecessary waste of effort on the part of the applicant and
the agencies.
As yet unresolved, several suggestions have been made
to alter the Corps' jurisdiction and decrease federal/state
overlapping. One alternative would be to place all permit
and land control programs in the hands of the federal
government.11 This approach would avoid the problem of inter-
state coordination. This is, however, an unlikely alternative
considering the amount of power the states would have to
relinquish. Two other legislative suggestions have been made.
In a recent impasse reached by Congress concerning an amendment
to �404, the House sought to restrict the Corps' 5404 juris-
diction by narrowing the definition of navigable waters.12
The Senate, however, was in favor of a system, similar to the
NPDES, under which the EPA and states with approved programs
would handle these dredge and fill permits; the Corps would
retain its dredge and fill jurisdiction in traditionally
navigable waters.13 Although no agreement was reached, either
of these positions could become a reality. For the present,
however, there is little likelihood that the Corps of
Engineers will be relinquishing their new jurisdiction.

10. 1 Sea Grant Law Journal 336 at 364.

11. Id. at 365.

12. H.R. 9560, 94th Cong., 2d Sess. (1976).

13. S. 2710, 94th Cong., 2d Sess. (1976).

180

B. State regulatory activities.

As suggested in the precedingssection, many states have
permit programs limiting the dredging and filling of wetlands
which parallel federal programs. This section illustrates
these programs with two samples, one from North Carolina and
the other from New York. New York's program is especially
interesting because there are two systems, one for freshwater
wetlands and one for tidal wetlands. Although basically
similar in procedure and intent, each system has unique aspects
such as the establishment of a Freshwater Appeals Board
(24-1101) and the moratorium on development of tidal wetland
areas (25-0202). The following cases, which. pertain to a
specific project in New York, illustrate the different results
possible under a state system as opposed to the federal one.

181

NORTH CAROLINA DREDGE OR FILL AND
WETLAND ACTIVITIES CCNTROL STATUiES

N.C.G.S. ��113-229, 113-230O

� 113-229. Permits to dredge or fill in or about estuarine waters or state-
owned lakes. - (a) Except as hereinafter provided before any excavation or
filling project is begun in any estuarine waters, tidelands, marshlands, or state-
owned lakes, the party or parties desiring to do such shall first obtain a permit
from the Department of Natural and Economic Resources. Granting of a State
permit shall not relieve. any party from the necessity of obtaining a permit from
the United States Army Corps of Engineers for work in navigable waters, if the
same is required. The North Carolina Department of Water and Air Resources
[Department of Natural and Economic ResourcesJ shall continue to coordinate
proJects pertaining to navigation with the United States Army Corps of
Engineers.
(d) Except in thle case of an application for a special emergency dredge or fill
permit, the applicant shall cause to be served in the manner provided by
subdivision (g)(9) of this section upon an owner of each tract of riparian property
adjoining that of the applicant a copy of the application filed with the State of
North Carolina and each such adjacent riparian owner shall have 30 days from
the date of such service to file with the Department of Natural and Economic
Resources written objections to the granting of the permit to dredge or fill. An
owner may be served by publication, in the manner provided by subdivision
(g)(10) of this section, whenever the owner's address, whereabouts, dwelling
house or usual place of abode is unknown and cannot with due diligence be
ascertained, or there has been a diligent but unsuccessful attenmpt to serve tile
owner under subdivision (g)(9) of this section. In the case of a special emergency
dredge or fill permit the applicant must certify that he took all reasonable steps
to notify adjacent riparian owners of the application for a special emergency
dredge and fill permit prior to submission of the application. Upon receipt of this
certifieation, the secretary shall issue or deny the permit within the time period
specified in (e) of this section, upon the express understanding from the applicant
that he will be entirely liable and hold the State harmless for all damage to
adjacent riparian landowners directly and proximately caused byEthe dredging"
or filling for which approval may be given.
(e) Applications for permits except special emergency permit applications
shall be circulated by the Department of Natural and Economic Resources
among all State agencies and, in the discretion of the Secretary, appropriate
federal agencies having jurisdiction over the subject matter which might be
affected by the project so that such agencies will have an opportunity to raise
aqy objections they might have. The Department may deny an application for
a dredge or fill permit upon finding: (1) that there will be significant adverse
effect of the proposed dredging and filling on the use of the water by the public;
or'(2) that there will be significant adverse effect on the value and enjoyment
of the property of any riparian owners; or (3) that there will be significant
adverse effect on public health, safety, and welfare; or (4) that there will be
significant adverse effect on the conservation of public and private water
supplies; or (5) that there will be significant adverse effect on wildlife or fresh
water, estuarine or marine fisheries. In the absence of such findings, a permit
shall be granted. Such permit may be conditioned upon the applicant amending
his proposal to take whatever meas ures are reasonably necessary to protect the
public interest with respect to the factors enumerated in this subsection. Permnits
may allow for projects granted a permit the right to maintain such project for
a period of up to 10 years. The right to maintain such project shall be granted
subject to such conditions as may be reasonably necessary to'protect the public
interest. The Marine Fisheries Commission shall by rule, after at least two public
hearings, enumerate such conditions as it deems necessary to carry out the
purposes of this subsection. Maintenance work as defined in this subsection shall
be limited to such activities as are required to maintain the project dimensions
as found in the permit granted. The Department shall act upon an application
for permit within 90 days after the application is filed except for applications
for a special emergency permit in which case the Department shall act within
two working days after an application is filed, and failure to so act shall
automatically approve the application.
(el) The Secretary of the Department of Natural and Economic Resources is
empowered to issue special emergency dredge or fill permits upon application.
Emergenc permits may be issued only when life or structural property is in

182

imminent danger as a result of rapid recent erosion or sudden failure of a man-
made structure. The Marine Fisheries Commission may, after public hearings,
elaborate by rule on upon what conditions the Secretary may issue a special
emergency dredge or fill permit. The Secretary may condition the emergency
permit upon any reasonable conditions, consistent with the emergency situation,
he feels are necessary to reasonably protect the public interest. Where an
application for a special emergency permit includes work beyond which the
Secretary, in his discretion, feels necessary to reduce imminent dangers to life
or property he shall issue the emergency permit only for that part of the
proposed work necessary to reasonably reduce the imminent danger. All further
work must be applied for by application for an ordinary dredge or fill permit.
The Secretary shall deny an application for a special dredge or fill permit upon
a finding that the detriment to the public which would occur on issuance of the
permit measured by the five factors in G.S. 113-229(e) clearly outweighs the
detr'ient to the applicant if such permit application should be denied.
tf) If any State agency or the applicant raises an objection of
the Department of Natural and Economic Resources regarding the permit
application within 20 days after said action was taken, the Department shall
refer the matter to the Marine Fisheries Commission. The Marine Fisheries
Commission shall hear the matter at its next regularly scheduled meeting, but
in no case more than 90 days from the date of the departmental action. At said
hearing, evidence shall be taken bv the review commission from all interested
persons, who shall have a right to be represented hbv counsel. After hearing the
evidence, the review commission shall make findings of fact in writing and shall
affirm, modify or overrule the action of the Department concerning the permit
application. Any State agency or the applicant may appeal from the ruling of
the review commission to the superior court of the county where the land or any
lart thereof is located, pursuant to the provisions of Chapter 150[A] of the
Gelieral Statutes.
(h) The granting of a permit to dredge or fill shall be deemed conclusive
evidelce that the applicant has complied with all requisite conditions precedent
to the issuance of such permit, and his right shall not thereafter be subject to
challenge by reason of any alleged omission on his part, except failure to notify
adjacent riparian landowners as required by subsection (d) of this section.
(i) All materials excavated pursuant to such permit, regardless of where
placed, shall be encased or entrapped in such a manner,as to minimize their
moving back into the affected water.
(j) None of the provisions of this section shall relieve any riparian owner of
the requirements imposed by the applicable laws and regulations of the United
States.
(k) Any person, firm, or corporation violating the provisions of this section
shall be guilty of a misdemeanor, and shall be punished by a fine of not more
than five hundred dollars ($500.00), or by imprisonment of not more than 90
days, or both. Each day's continued operation after notice by the Department
to cease shall constitute a separate offense. Notice to cease shall be pursuant
to G.S. 113-229(g)(9).
(1) The Secretary may, either before or after the institution of proceedings
under subsection (k) of this section, institute a civil action in the superior court
in the name of the State upon the relation of the Secretary, for damages, and
injunctive relief, an(d for such other and further relief in the premises as said
court may deem proper, to prevent or recover for any damage to any lands or
property which the State holds in the public trust, and to restrain any violation
of this section or of any provision of a dredging or filling permit issued under
this section. Neither thle institution of the action nor any of the proceedings
thereon shall relieve any party to such proceedings from the penalty prescribed
by this section for any violation of the same.
(m) This section shall apply to all persons, firms, or corporations, their
employees, agents, or contractors proposing excavation or filling workl in the
estuarine waters, tidelands. marshlands and state-owned lakes within the State,
and to work to be performed by the State government or local governments.
Provided. however, the provisions of this section shall not apply to the activities
and functions of the North Carolina Department of Human Resources and local
health departments that are engaged in mosquito control for the protection of
the health and welfare of the people of the coastal area of North Carolina as
provided under G.S. 130-206 through 130-209. Provided, further, this section
shall not impair the riparian right of ingress and egress to navigable waters.

183

(n) Within the meaning of this section:
(1) "State-owned lakes" include man-made as well as natural lakes.
(2) "Estuarine waters" means all the waters of the Atlantic Ocean within
the boundarv of North Carolina and all the waters of the bays, sounds,
rivers, and tributaries thereto seaward of the dividing line between
coastal fishing waters and inland fishing waters agreed upon by the
Department of Natural and Economic Resources and the Wildlife
Resources Commission, within the meaning of G.S. 113-129.
(3) "Marshland" means any salt marsh or other marsh subject to regular
or occasional flooding by tides, including wind tides (whether or not the
tidewaters reach the marshland areas through natural or artificial
watercourses), provided this shall not include hurricane or tropical
storm tides. Salt marshland or other marsh shall be those areas upon
which grow some, but not necessarily all, of the following salt marsh
and marsh plant species: Smooth or salt water Cordgrass (SpCartina
(lteri?0for1l , Black Needlerush (JO.c:u.s ro,5 ermie, ii.js, (;lasswort
(Salifc(;rt'? spp. I, Salt Grass (I)i.stichlis .spica tl), Sea I,avender
(Limonium spp.), Bulrush (Scirpus spp.), Saw Grass (Cladium ja7nai-
centse), Cattail iTyphu spp.), Salt-Meadow Grass (Spirtitn putens),
and Salt Reed-Grass (Spartiml Cyos7tloides). (1969)

� 113-230. Orders to control activities in coastal wetlands. --- (a) The
Secretary of Natural and Economnic Resources, with the approval of the Marine
Fisheries Commission, may from time to time, for the purpose of promnoting the
public safety, health, and welfare, and protecting public and private property,
wildlife and marine fisheries, adopt, amend, modify, or repeal orders regulating,
restricting, or prohibiting dredging, filling, removing or otherwise altering
coastal wetlands. In this section, the term "coastal wetlands" shall mean any
marsh as defined in G.S. 113-229(n)(3), as amended, and such contiguous landl
as the Secretary reasonably deems necessary to affect by any such order in
carrying out the purposes:of this section.
(b) The :Secretary shall, before adopting, amending, modifying or repealing
anyliv such order, hold a public hearing thereon in the county in which the coastal
wetlands to be affected are located, giving notice thereof to interested State
agencies and each owner or claimed owner of such wetlands by certified or
registered mail at least 21 days prior thereto.
(c) Upon adoption of any such order or any order amending, modifying or
repealing the same, the Secretary shall cause a copy thereof, together with a
plan of the lands affected and a list of the owners or claimed owners of such
lands, to be recorded in the register of deeds office in the county where the land
is located, and shall mail a copy of such order and plan to each owner or claimed
owner of such lands affected thereby.
(d) Any person, firm or corporation that violates any order issued under the
provisions of this section shall be guilty of a misdemeanor, and shall be punished
by a fine of not more than five hundred dollars ($500.00), or by imprisonment
for not more than six months, or both in the discretion of the court.
(e) The superior court shall have jurisdiction in equity to restrain violations
of such orders.
(f) Any person having a recorded interest in or registered claim to land
affected by any such order may, within 90 days after receiving notice thereof,
petition the superior court to determine whether the petitioner is the owner of
the land in question, and in case he is adjudged the owner of the subject land,
whether such order so restricts the use of his property as to deprive him of the
practical uses thereof and is therefore an unreasonable exercise of the police
power because the order constitutes the equivalent of a taking without
compensation. If the court finds the order to be an unreasonable exercise of the
police power, as aforesaid, the court shall enter a finding that such- order shall
not apply to the land of the petitioner; provided, however, that such finding shall
not affect any other land than that of the petitioner. The Secretary shall cause
a copy of such finding to be recorded forthwith in the register of deeds office
in the county where the land is located. The method provided in this subsection
for the determination of the issue of whether any such order constitutes a taking
without compensation shall be exclusive, and such issue shall not he determined
in any other proceeding. (l971)

184

NEW YORK FRESHWATER WETLANDS ACT OF 1975

(McKinney) S�24-0101 et seq.

� 24-0103. Declaration of policy
It is declared to be the public policy of the state to preserve, protect
and conserve freshwater wetlands and the benefits derived therefrom,
to prevent the despoliation and destruction of freshwater wetlands, and
to regulate use and development of such wetlands to secure the ilatural
benefits of freshwater wetlands, consistent with the general welfare and
beneficial economic, social and agricultural development of the state.
� 24-0107. Definitions
1. "Freshwater wetlands" means lands and waters of the state as
shown on the freshwater wetlands map which contain any or all of the
following:
(a) lands and submerged lands commonly called marshes, swamps,
sloughs, bogs, and flats supporting aquatic or semi-aquatic vegetation
of the following vegetative types:
(1) wetland trees, which depend upon seasonal or permanent flood-
ing or sufficiently water-logged soils to give them a competitive advan-
tage over other trees; including, among others, red maple (Acer rubum),
willows (Salix spp.), black spruce (Picea mariana); swamp white oak
(Quercus bicolor), red ash (Fraxinus pennsylvanica), American elm
(Ulmus americana), and Larch (Larix laricilna);
(2) wetland shrubs, which depend upon seasonal or permanent flood-
ing or sufficiently water-logged soils to give them a competitive advan-
tageu0 ut o ther shrutbs; including, among others, alder (Alnus spp.), but-
tonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glau-
cophylla), and leatherleaf (Chamaedaphne calyoulata);
(3) emergent vegetation, including, among others, cattails (Typha
spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), ar-
row arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed
(Phragmites communis), wildrice (Zizania aquatica), bur-reeds (Spar-
ganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife
(Decodon .verticillatus), and water plantain (Alisma plantago-aquatica);
(4) rooted, floating-leaved -vegetation; including, among others, wa-
ter-lily (Nymphaea odorata), water shield (Brasenia sehreberi), and
spatterdock (Nuphar spp.);
(5) free-floating vegetation; including among others, duckweed
(Lemna spp.), big duckweed (Spirodela polyrhiza), and watermeal
(Wolffia spp.);
(6) wet meadow vegetation, which depends upon seasonal or permla-
'nent flooding or sufficiently water-logged soils to give them a competi-
tive advantage over other open land vegetation; including, aniong oth-
ers, 'sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.),
rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundi-
nace), swamp loosestrife (Decodon verticillatus), and spikerush (Eleo-
charis spp.);
(7) bog mat vegetation; including, amnong others, sphagnuIm mosses
(Sphagnum spp.) bog rosemary (Andromeda glaucophylla), leatherleaf
(Chamaedaphne calyeulata), pitcher plant (Sarrancenia purpurea), and
cranberries (Vaccineumn miacrocarpon and V. oxycoccos);
(8) submergent vegetation; including, among others, pondweeds (Po-
talnoziton spl,.), navads (Najas spp.) bladderworts (Ultriecularia spp.),
wild celery (Vallisneria americana), coontail (Ceratophyllumi deller-
sum), waler nmilfoils (Myriophylllln spp.) muskgrass (Chara), stonewort
(Nitella spp.), wvatr weeds (Elodea spp.), and water smartweed (P'oly-
gonum aniphibiunl);
(b) lands and submerged lands containing remnants of any vegetation
that is not aquatic or semi-aquatic that has died because of wet condi-
tions over a sufficiently long period, provided that such wet conditions
do riot exceed a laximum seasonal water depth of six feet and provided
further that such conditions can be expected to persist indefinitely, bar-
ring human intervention;
(c) lands and waters enclosed by aquatic or semi-aquatic vegetation
as set forth herein in paragraph (a) and dead vegetation as set forth
in paragraph (b), the regulation of which is necessary to protect and
preserve the aquatic and semi-aquatic vegetation; and
(d) the waters overlying the areas set forth in (a) and (b) and the
lands underlying (c).

185

� 24-0701. Permits
1. After issuance of the official freshwater wetlands map of the
state, or of any selected section or region thereof, pursuant to section
24-0301 hereof, any person desiring to conduct on freshwater wetlands
as so designated therein any of the regulated activities set forth in sub-
division two of this section must obtain a permit as provided in this title.
2. Activities subject to regulation shall include any form of draining,
dredging, excavation, iremoval of soil, mud, sand, shells, gravel or other
aggregate from any freshwater wetland, either directly or indirectly;
and any form of dumping, filling, or depositing of any soil, stones, sand,
gravel, mud, rubbish or fill of any kind, either directly or indirectly;
erecting any structures, roads, the driving of pilings, or placing of any
other obstructions whether or not changing the ebb and flow of the wa-
ter; any form of pollution, includihg but not limited to, installing a
septic tank, running a sewer outfall, discharging sewage treatment ef-
fluent or other liquid wastes into or so as to drain into a freshwater
wetland; and any other activity which substantially impairs any of the
several functions served by freshwater wetlands or the benefits derived
therefrom which are set forth in section 24-0105 of this article. These
activities are subject to regulation whether or not they occur upon the
wetland itself, if they impinge upon or otherwise substantially affect
the wetlands; provided, however, that no regulation shall apply to any
area more than one hundred feet from the boundary of such wetland or
any such lesser or greater distance therefrom as determined by the ap-
propriate local government.
3. The depositing or removal of the natural products of the fresh-
water wetlands by recreational or commercial fishing, shell-fishing, aqua-
culture, hunting or trapping shall be excluded from the regulated ac-
tivities, where otherwise legally permitted and regulated.
4. The activities of farmers and other landowners in grazing and
watering livestock, making reasonable use of water resources, harvesting
natural products of the wetlands, selectively cutting timber, draining
land or wetlands for growing agricultural products and otherwise engag-
ing in the use of wetlands or other land for growing agricultural prod-
acts shall be excluded from regulated activities and shall not require a
rermit tunde� subdivision one hereof, except that structures not required
for enhancement or maintenance of the agricultural productivity of the
land and any filling activities shall not be excluded hereunder, and pro-
vided that the use of land designated as a freshwater wetland upon the
freshwater wetlands map at the effective date thereof for uses other
than those referred to in this subdivision, shall be subject to the pro-
visions of this article. Each farmer or landowner who intends to con-
duct an activity described in 'this subdivision which would otherwise be
regulated shall notify the department 'in writing of his intention to en-.
gage in such activity, stating the approximate acreage to be affected, the
general location thereof, the use or uses to be made of such land and the
methods to be employed.
The filing of a soil and water conservation plan prepared by a soil and
water conservation district for the owner of wetlands under this subdi-
vision shall be deemed to satisfy the notification requirement.
5. Public health activities, orders, and regulations of the department
of health shall be excluded from regulated activities. Copies of all such
public health orders and regulations affecting wetlands shall be filed
with the department of environmental conservation. The commissioner
may request modification of such orders or regulations if he deems such
necessary to implement the policy of this article.
6. The commissioner shall review all current mosquito control proj-
ects to determine whether they are having any adverse impact on fresh-
water wetlands. Where any adverse impact is found, the commissioner
may require modification of such projects if he deems such necessary
for the implementation of the policies of this article.
7. Where dredging or filling is in navigable waters of the state or
is for the reconstruction or repair of certain dams and docks, and where
such activity also affects freshwater wetlands, any person undertaking
such activity must seek permission under this article as well as under
any other applicable law.
8. On any land that is being developed pursuant to a planned unit
development ordinance or local law where freshwater wetlands are to
remain as open space, development activities shall be permitted in areas
contiguous to such wetlands if the local government affirms that such
activities will not despoil said wetland.

186

� 24-1101. Freshwater wetlands appeals board
:1. There is hereby created in the department an appeals board, to
be known as the freshwater wetlands appeals board, hereinafter in
this article referred to as the board, consisting of five members.
� 24-1103. Powers
1., The board shall have power, and it shallbe its duty:
e. To hear appeals by any party to ally proceeding before the com-
missioner or local jurisdiction trom all orders or decisions of the comn-
missioner or local jurisdiction issued or jmade pursuant to this article,
provided such appeals are commenced by the filing with the board of
a. notice of appeal within thirty days after service of such order or after
notice of such decision given, as the case may be;
.d. To review any decision or order of the conmmissioner or local gov-
ernment made pursuant to this article upon appeal therefronm by any
person or municipal corporation affected thereby, providing sull-h review
is commlenced by the filing with the bonrl of a notice of review within
thirty days after service of such order or notice of such decision given,
axa thle_asce iaybe......... . .
g. To stay the effectiveness of any order or decision of' the coinllns-:
sioller or local jurisdiction pendinlg the determination of an appeal ill
proper cases and oil such terms and conditions as the board ilmay require.
2. The hoard nmay affirm,'remand or reverse any order or decision
61f the connllissioner or local governmenllilt or remlialid the matter to the
commdissioner or local governmnent 'or further proceedings in whole,
or with respect to any. part thereof', or with respect to any party, pro-
vided however that the board shall limit its review to whether the order
or decision of the commnissioner or local government is:
a. in conformity with the constitution and the laws of the state and
the United States;
b. within the commissioner's or local governmlllnt's statutory juris-
diction or authority;
e. milade in accordance with lprocedures required by law or established
by appropriate rules or regulations of the commissionler or local gov-
erinent;
d. supported by substantial evidence on the whole record; or
e. not arbitrary, capricious or eharacterized by abuse or discretion
or clearly unwarranted exercise of discretion.
The commissioner or local goverlnelt shall be bound by the decision
iof the board exeept to the extent: such decision is reversed or otherwise
MInodified by a court of competent jurisdiction pursuant to this article.

NEW YORK TIDAL WETLANDS ACT OF 1973

(McKinney) ��25-0101 et seq.

Legislative Findings. Section 1 of fish and shellfish are commerciav]y protecting upland and developed areas
I.1!)78. c. 790, eff. Sept. 1, 3978, pro- harvested and two-thirds of sport from storm tides and waves;
vided: fish depend on the marsh-estuarine "(d) reereation-tidal wetlands
"The legislature hereby finds and de- system of the tidal wetlands at some provide hundreds of square miles and
clares that tidal wetlands constitute point in their life cycle; millions of days of recreation, hunt-
one of the most vital and productive "(b) wildlife habitat-tidal wet- ing, fishing, boating, hiking, bird
areas of our natural world, and that lands are necessary as the breeding. watching, photography and camping
their protection and preservation are nesting and feeding grounds and as for many thousands of citizens of
essential. Among the many and mul- cover to escape predators for manv 'the state' and visitors to the state;
tiple values of reuch wetlands are the forms of wildlife, waterfowl and the location of many tidal wetlands
following: shorebirds; fronting on the eastward expansion
"(a) marine food production--tidal "(el flood and storm control-tidal of human population in Long Island
wetlands are an essential area of wetlands are valuable and provide es- makes .tliem 'the last frontier' for
retention. conversion and availability sential aid irreplaceable protection in certain of the state's valuable natural
of nutrients for crustaceans and shell- both flood and storm or hurricane * resources, underscoting the necessity
fish); they are the nursery ground and weather conditions; their hydrologic for their preservation in parks andl
sanctunary for many fin fish; they water absorption and storage eapacity reserves;
sustain microscopic marine organisms minTiiii te erosioi and flooding dam- ; "(c) treating poliution-tidal wet-
and vegetation which are essential in age, their hydraulic and hydrographlici' lands serve as an invaluable and irre-
otlher food chains; two-thirds of the functions serve as a natural buffer placeable biological and chemical oxi-

187

'dation btasin in which orga-ine run-off portunity for tile imparting of en- and like activities; that thle remaining
and organic pollution are oxidized, vironmental values in our youth; tidal wetlands are in imminent jeop-
metabollzed and converted into useful "(II) open space and aesthetic ap- ardy of being lost or despoiled by
nutrients; the vast quantities of oxy- preciation-tidal wetlands comprise a these and other activities; that if
gen necessary for this Process must large part of the remaining natural the current rate of loss continues,
come from the open, livingtildal marsh and unspoiled areas along the crowd- most of tile state's tidal wetlands will
and its photosynthesis;.; r ed coastal reaches of the state; the be entirely lost before the end of this
"(f) sedimentation-tidal wetlands benefit to the public of these natural century; and that presently many
are an essential settling *and filtering open areas in a region of rapid popu- creeks and tidal wetlands are so pol-
basin, absorbing Hilt and. organic mat- lation growth is significant; such luted that shellfish harvesting is ban-
ter which otherwise would obstruct wetlands offer unique open space and ned. Accordingly, the legislature finds
channels and harbors to the detriment aesthetic qualities while at the time that it is in the interest of the state,
of navigation: /. . permitting full play to their other consistent with the reasonable eco-
"(g) education and research-tidal natural values. nomic and social development thereof,
wetlands afford a wide range of op- "The legislature further finds that to preserve as much as possible of
portunity for scientific research, out- vast acreage in tile tidal wetlands in these remaining wetlands in their
door biophysical laboratfoies,' anil liv- the state of New York has already present natural state and to abate and
ing educational classrooms; their been irreparably lost or despoiled as remove the sources of their pollu-
training and education value is enor- a result of unregulated dredging, tion."
mous, and they offer unbounded op- dumping, filling, excavating, polluting,

� 25-0102, Declaration of policy
It is declared to be the public policy of this state to preserve and
protect tidal wetlands, and to prevent their despoliation and destruction,
giving due consideration to the reasonable economic and social develop-
menWt of the state.
� 25-0103. Definitions
1. "Tidal wetlands" shall mean and include the following:
(a) those areas which border on or lie beneath tidal waters, such as,
"but not limited to, banks, bogs, salt marsh, swamps, meadows, flats or
other low lands subject to tidal action, including those areas now or
formerly connected to tidal waters;
. (b) .all banks, bogs, meadows, flats and tidal marsh subject to such
tides and.,upon which grow or may grow some or any of the following:
sait hay (Spartina patens and Distiehlis spicata), black grass (Juneus
Ocerardi), saltworts (Salicornia ssp.), sea lavender (Limonium carolinian-
m), tall eobrdgrass (Spartina pectinata and Spartina cynosuroides),
hightide bush (Iva frutescens), cattails (Typha angustifolia and Typha
latifolia), groundsel (Baccharis halmilifolia), marsh mallow (Iyvbiseds
-palustris) and the intertidal zone including low marsh ebrdgrass (Spar-
tina alterniflora).
2. !'Commissioner" shall mean the oimiiiissioner of environmental eoll-
servatiol ..
� 25-0202. Moratorium on alteration of tidal wetlands
1. No person shall alter the state of any tidal wetland or of any area
immediately adjacent to such wetland as the commissioner may reason-
ably deem necessary to preserve in order to effectuate the policies and
provisions of this act, prior to the effective date of the land-use regala-
tions adopted by the commissioner pursuant to this act, unless a permit
for such alteration shall have been obtained pursuant to section 15-0505
of the environmental conservation law. This moratorium shall not re-
strict in any way any summary action taken by the commissioner under
section 71-0301 of the environmental conservation law.
2. Any person, upon a showing of hardships caused by this mora-
torium, may petition the commissioner feora review of the application of
the moratorium to any tidal wetland'or any area immediately adjacent
thereto. Within thirty days of the petition being received, the comnmis-
sioner shall provide the petitioner and any other person an opportunity
to be heard. Notice of such hearing shall be published in at least two
newspapers having a general circulation in the area where the wetlands
are located, and notice of such hearing shall also be given by registered
mail to the chief administrative officer of each municipality within
whose boundary any such wetland or portion thereof is located. If the
proposed alterations of the tidal wetlands are not contrary to the policy.
or any provision of this act, the commissioner may permit the alteration
to continue during the moratorium, provided that permission may be
revoked by the commissioner- if its terms are violated and that the per-
mission ends upon completion of the inventory for the area in which the
affected wetlands are located, and provided further that any such hard-
ship permit issued by the commissioner shall be iri addition to, and iot
in lieu of, such permit or permits as may be required by any municipality
within whose boundary such wetland or portion thereof is located.

188

� 25-0401. Regulated activities
]. After completion of the inventory prescribed in title 2 of this
artile with respect to any tidal wetland, no person may conduct any
of the activities set forth in subdivision 2 of this section unless he has
obtained a permit from the commissioner to do so. The permit issued
by the commissioner shall be in addition to, and not in lieu of, such
permit' or permits as may be required by any municipality within whose
boundary such wetland or portion thereof is located.
2. Activities subject to regulation hereunder include any form of
draining, dredging, excavation, and removal either directly or indirectly,
of soil, mud, sand, shells, gravel or other aggregate from any tidal
wetland; any form of dumping, filling, or depositing, either directly
or indirectly, of any soil, stones, sand, gravel, mud, rubbish, or fill of
any kind; the erection of any structures or roads, the driving of any
pilings or placing of any other obstructions, whether or not changing
the ebb and flow of the tide, and any other activity within or im-
mnediately adjacent to inventoried wetlands which may substantially
impair or alter the natural condition of the tidal wetland area.
3:. The depositing or removal of the natural products of the tidal
wetlands by recreational or commercial fishing, shellfishing, aquacul-
ture, hunting or trapping, shall be excluded from regulation hereunder,
where otherwise legally permitted.
4. Activities, orders, and regulations of the department of health or
of units of local government with respect to matters of public health
'shall be excluded from regulation hereunder, except as hereinafter pro-
vided. Copies of all such public health orders and regulations affecting
tidal wetlands shall be filed with the department of environmental con-
servation. The commissioner may require modification of such orders
or regulations if he deems it necessary to implement the policy of this
act.
6. The commissioner shall review all current mosquito control projects
to determine whether they are having any adverse impact on tidal
wetlands. Where any adverse impact is found, the commissioner fol-
lowing a public hearing, may require modification of such projects if he
deems it necessary to implement the policy of this act.
6. Where the dredging or filling is in the navigable waters of the
state or is for the reconstruction or repair of certain dams and docks,
and where such activity also substantially affects tidal wetlands, any
person undertaking such activity must seek permission under this act
as well as under any other applicable law.

� 25-0403. Granting of permits
1. In granting, denying or limiting any permit under this act, the
commissioner shall consider the compatability of the proposed activity
with reference to the public health and welfare, marine fisheries, shell-
fisheries, wildlife, flood and hurricane and storm dangers, and\the land-
use regulations promulgated pursuant to section 25-0302 of this act.
2. Notice that the state or any agency or subdivision thereof is in the
process of acquisition of any tidal wetlands by negotiation or condemna-
tion shall be sufficient basis for denial of any permit under this sec-
tion.
3. In granting a permit, the commnissioner may impose such con-
ditions or limitations as may be necessary to carry out the public policy
set forth in this act. The commnissioner may require a bond in an amount
and with surety and conditions satisfactory to him securing to the state
compliance with the conditions and limitations set forth in the permit.
The commissioner may suspend or revoke a permit if he finds that the
applicant has not comnplied with any of the conditions or limitations set
forth in the permit or has exceeded the scope of the work as set forth
in the application. The commissioner may suspend the permit if the ap-
plicant fails to comply with the terms and conditions set forth in the
application.

189

HAMILTON v. DIAEND

349 N.Y. Supp. 2d 146 (1973)

IMAIN, Justice.
This is an apl)cal from a judgment of' the Suplrcme C(ourt at Sp)ecial
Term, 70 Mise.2d 899, 335 N.Y.S.2d 103, entered August 9, 1972 in
Albany County, which dismissed pletitioners' application, in a proceed-
ing pursuant to CPLR article 78, to declare a determination of the
respondent Comnliissioner of Environmental Conservation granting a
permlnit to fill in the Hludson River at 190 River Road, Grand View-on-
lf udson, illegal and void and( to direct that such permit be revoked and
rcscinded.
On or about August 11, 1970, reslponde nt Eberhard Thiermann and
llis wife acquired title to a lot at 190 River Road, Grand View-on-Hud-
son, along with certain un(lerwater landls ad(jacent to the lot. The
wroperlty lies between the Rliver Road on the west and the Hudson
River on the east an(i has an area of 8,378 square feet of' land above
tihe river's mean high water mark.
'The Thiermanns, desirous of building a home on the land, pIroposed
to lhe Delpartment of Environmenlal Conserxation that they be grant-
edl permission to construct a sea wall in the river' and fill in the
enclosure, pursuant to section 429--h of the Conservation Law (now
Lnvilonmental Consrvaltion Law, � 15--0505) and the rules and regu-
lations plromulgated to imllement that section (6 NYCRR, Part 611
[now 6 NYtIRR, Part 608]). This action was necessary to satisfy a
local zonin),g ordinance which requires a lot containing not less than
10,000 square feet of land above the mean high water mark of the
river for the construction of a ldwelling.
In the exercise of the discretionary p)owers of his office; Robert
Drew, tLh)e actinlj central permit ant. schledu ledt a public himarin' on
this request. Preside(t over byv Mr. Stewart M. Dean, the hear'ing
lasted several diays, after which Mr. Drew made his determination
wherein he set forth his findings of fact, conclusions and determina-
tions. HRe decided that the appllication was in the public interest and
would not adversely affect the health and welfare and safety of the
State or its natural resources. Accordingly, the permit was granted.
Petitioners then brought this article 78 proceeding to set aside the
dtetermination and the court below dismissed their petition. They
raise substantially the same issues here, which are: (1) whether the
determination is illegal, arbitrary and an abuse of discretion and not
supported by the evidence in the record; ...
We hold that the deter minatioin is neither illegal, arbitrary; nor
capricious, and that it is supported by the evidence in the record. An
examination .L:thelrious testimony and exhibits in the record
reveals such substantial support for tl-le determination that unmistak-
ably the department had a rational basis for granting the permit and
we must affirm its action (Matter of Bologno v. O'Connell, 7 N.Y.2d
155, 196 N.Y.S.2d 90, 164 N.E.2d 389).

190

That such a basis exists is manil'fsi fromi even a culsory readiinng of
the record1. It is unon(1tested that the pernctlit is re(e.saltry for conlpli-
ane ll ith tht local z oning or lillnc, as the ThierantLns have no room
for expansion or reclamation in anll other direction. Additionall.,, the
lroposed projevt lprovids fo safe. and proper conlstruction1, and tlhere
is sulbstantial evi(cldnce as Lo the plublic bcuneflits therefrom. There is
testimony to the ef'l'cct that unkempt, oV(g'l'o1W) Irl)(pe'lt woNuld be
tlv'eloi)etl, a litUtered shoreline Hwoull1( be cleanedt uL, the liver water
would hbe cleansed, erosion would be reduced, the shortliiie would
rcceive n(mcd(l.:l protection fronm savagre and destructive "nor'theslter's,
and even that the lproperty's pCsetni t 'c seSSe;islnelnt \soui(l ) ic q(llutdlru-
pleol. On such a recorld iS this, we cannot say that the D)ep:trtlmlnt of
Environmental Conservation was irrational in its dleterminaltion.

Lastly, we recognize that the cumulative effect of many such
landfills might well have a meaningful and (leleterious impact upon
the environment. However, there has been no showing that addition-
al applications for similar lprojects will )be forthtonling an(l, at any
rate, each case must he (decidetd upon its own in(lividual facts.
The judgment shoultl e affirmed, without costs-

RIVER DEFENSE COMMITTEE v. THIERMAN

380 F. Supp. 91 (S.D.N.Y. 1974)

STEINART, DistrictJudge:
plied with Congressional dictates as well
This conflict presents the classic as with the Agency's own regulations.
clash between the interests of an indi- . . . e conclude that plain-
vidual landowner and the public interest. tiffs have demonstrated a high degree of
IHere the landowner, the defendant in probability of establishing that the con-
this action, purchased a piece of land, tested permit was invalidly granted by
with the intent to use his rights to river the Army Corps of Engineers, and that
areas under a State patent to create a the public interest in the preservation of
fill so that his lot would then be big the Hudson River as a breeding and
enough to build a house in conformity spawning area would be irreparably
with the zoning laws. The plaintiffs, on harmed if a preliminaly injunction is
the other hand, claim to assert their own not granted. As will be discussed here-
and the community interest in preserv- in, the defendants will suffer only incon-
ing the Jludson River as an important venience and any monetary damage will
estuairy ind spawning atrea for several be covered by the security ordered by
kinds of fish. The ultimate resolution this Court.
of this conflict should not be decided by . . Folr the purposes of the de-
this court because policy determinations telnlilnationof plaintiffs' motion for a
of this kind are left to the expertise of !.'rliminlary injunction, we need only
the agency. The jurisdiction of the fed- culsider the claim that the permit
eral court extends only to reviewing granted to Mr. Thierman is null and
whether the Corps of Engineers corn- void in that (1) the District Engineer's

191

l.itlrnmiination not to issue an environ- Mr. Thierman entered into this statu-
'11litall iimpact statement was based on tory and regulatory scheme after having
, ,iclulsory evaluations which failed to received a permit from the State of New A
!' Xvlop a lreviewable environmental York which withstood judicial review by
i.i:rd: (2) the Corps of Engineers the New York State courts. On May 4.
a;ilh,'l to (lraft and file an environmental 1971, Mr. Thierman applied to the Corps
,llcal statement pursuant to Section of Engineers pursuant to 33 U.S.C. See-
,,2, 2)(') of NEPA, 42 U.S.C. � tion 403 for a permit to construct a con-
;:',2)2 (('); and (3) the Corps of En-- crete seawall and fill in the enclosed
X'inl.';i failed to hold a public hearing area behind it. The defendant Colonel
Tr'iior to issuing the permit as required - Lombard issued public notice No. 6953
hY Section 404 of the Federal Water dated January 7, 1i972 requesting inter-
I'lllltitio Control Act Amendments of ested parties to comment on Thierman's
11972 anid by the Corps of Engineers applicatiotn. The response to this notice
l\,'Vllaltion, a:3 CFR �� 209.120(d)(11) consisted of 33 letters of opposition, a
;ulm (~g). petition in opposition bearing 166 signa-
* _* * - tures and 138 postcards protesting the
The basic facts are simple. The river planned construction. Eleven individu-
'sought to be protected is the Hudson als wrote in support of the project. Be-
River, a navigable body of water of the sides eliciting public reaction, the
United States from the harbor of New planned project also evoked a response
York City to a point north of Albany, on February 19, 1972 from the Depart-
New York. The location of the planned ment of Interior which stated that Mr.
fill is part of the shallows of the Hudson' Thierman's application:
River, an estuary and an important "constitutes a violation of the Refuse
spawning arnd nursery ground for many Act in that it creates an unreasonable
species of fish including striped bass. occupancy in navigable waters. We
These shatl]ows are found in limiteid also believe such a project should not
areas along the shores and provide shel- be permitted since it creates 'cheap
ter and food for young fish. The ability land' for construction purposes utiliz-
of the Hudson to continue to sustain a ing a publicly owned resource. Suffi-
major fishery is dependent on the con- cient upland is available for project
tinued existence of adequate amounts of implementation space. We can pre-
healthy shallow areas within the estuary. sume that no concern is being given to
The uncontested affidavits of John Rus-
the further decimation of shoreline
sell C(larli and Robert H. Boyle, men habitat. Continued 'piecemeal' devel-
highly qu;alilfied in the field of marine opment of these valuable areas must
life as well am familiar with the Hudsono
life as well as familiear with the iudson atbe closely monitored if any are to re-
estuary, make it clear that there is at main
least a plrobability that the Thierman fill
will have a detrimental impact on the We recommend that this application
Illidson River nursery and spawning be denied since the proposed construc-
area. It is also clear on the basis of the tion is not' within the best interests of
affidlavits that continued granting of the general public''
pormits similar to Mr. Thierman's by This position was subsequently with-
tlle Corps of Engineers without a thor- drawn by the Department of Interior.
ough evaluakion of their effect will cause The Corps of Engineers did not hold a
se r ious arnd irlrelalrable iniury to the public hearing on the Thierman project.
f-ludsonl River estuary. Oni October 16, 1973 the Corps deter-
The nbasis for plaintiffs' attempt to mined "that the issuance of a permit for
enjioinll Mr. Thierman from proceeding the proposed work will not constitute a
with his planned construction is their major federal action significantly affect-
claim that the action taken by the Corps ijg the quality of the human environ-
of Engineers was not in conformity ilent and therefore an environmental
with the statutes and regulations under impact statement is not required." On
which it acts. October? .9, '1973 Mr. Thierman received

192

;, p(ermit for his proposed construction IY.2d 823 (2nd ('ir. 19721 made it clear
iridl fill. At the preliminary injunction 'hat federal agceIcics must establish rl-
lcarillg, Mr. Thierman testified that he vil"Wable environmental records. In ad-
ilad access to free rock for fill if he re- 'lition to instructing agencies that per-
Teived it immndiately. Because the rock . tlnctory conclusions were not acceptable
%vuiiild olherwise cost him $20(,000(C, Mr. a basis for environmental determina-
Thierlmall lalns to continue to deposit ii.ljs the coUn t also r1uled it was erlor
q , ciick on the Ibanks of the Hudson and t al the agency to consider the project as
Il1t,) (hri HIleudson River if not restrained. hI1a iiolatedl phenomenon. In light of the
r('l.clusflXS lf Lfou'. Hanly case it is not at all unlikely that
the plaintiffs can successfully demon-
Whether a public hearing was strate that the Corps' environmental
:.',llired to he held before granting a evaluation lacked the necessary basis to
I.mit is the fiirst issue raised by plain- support its conclusion.
lilt' in attacklingz the validity of the per- There is no question on the record be-
iitm t lUpoll the facts before us We con- fore us that there exists a significant
Illmlle that. purnsurant to 3:3 ('.F.R. 209.- environmental controversy over the pro-
.ll( d )(11) and 2U0.210(g) the District posed plan which if allowed to proceed
I:liigineer should have held a public hear- would render this litigation moot. Thus
iil,. [Tis failure to have done so plior the plaintiffs have not only shown that
;!1 'the, isjsiuauce of the permit would re- there is a substantial likelihood of suc-
f ;ic ~us tLo invalidate the permit. Ilow- cess as to the merits of their claims,
Wi(lIl. 1( note t(fat the govelnlrltnme has they have also demonstrated that irrep-
r l schletlulled a public hearing on the a-rable harm would result if a prelimi-
o:' sepllod fill. nary injunction did not issue. Since de-
. Plalintiffs bav(?! demojllstrated ctlfendant obtained the free rock and
ii tre P of likeiihood of sn.rs a ted dumped it on his land, we conclude that
bi}l melrits I ks to their claim that the the plreliminary injunction has not and
'i-itlictL asollfinavi's conclusion c coi cerlt- will not cause him any harm other
NW A lr11. Thiiei'mnan's application was per- than delay.
l(ctIr(cy .land was not sufficient to sup-
I,,'1 the (r.Clps' determination. ' The Sec-
, (l ('ilrcrit in lanlly v. Kleindienst, 471

193

C. Deepwater ports.

THE DEEPWATER PORT ACT OF 1975

33 U.S.C. ��1501 et seq.

. � 1501. Congressional declaration of policy -- '
(a) It is declared to be the purposes of the Congress in this chapter
- 1) authorize: and degulaf'eth-i'location, -ovh'isffip; bonsttrutibn,-
and operation of deepwater ports in waters bay.q9d.the" territorial
limits of the United States;
(2) provide for the protection of the marine and coastal environ-
ment to prevent or minimize any adverse impact which might occur-
as a consequence of the development of such ports;
(3) protect the interests of the United States and those of ad---
jacent coastal States in the location, construction, and operation of
deepwater ports; and
(4) protect the rights and responsibilities-of States and communi-
ties to regulate growth, determine lanZ- use, and otherwise protect
the environment in accordance with law.
(b) The Congress declares that nothing In this chapter shall be con-
strued to affect the legal status of the high seas, the superjacent air-
space, or the seabed and subsoil, including the Continental Shelf.

� 1502. Dofinltions
As used in this chapter, unless the context otherwise requires, the
term-
(1) "adjacent coastal State" means any coastal State which (A)
would be directly connected by pipeline to a deepwater port, as pro-
posed in an application: (13) would be located within 15 miles of
any such proposed deepwater port; or (C) is designated by the See-
retary in accordance with section 1508 (a) (2) of this title;
(2) "affiliate" means any entity owned or controlled by, any per-,
son who owns or controls, or any entity which is under common own-0
ership or control with an applicant, licensee, or any person requiredr
to be disclosed pulsnant lo s(ection 150(4(c) (2) (A) or (B) of thisi
title; '
(3) "antitrust laws" includes the Act of July 2, 18.90, as amended,,
the Act of October 16, 1914, as amended, the Federal Trade Comrn-'
mission, and sections 73 and 74 of the Act of August 27, 1894, as
amended;
(4)"application" imeans any application submitted under this chap-s
ter (A) for a license for the ownership, construction, and operation s
of a deepwater plort; (P) for transfer of any such license; or (C) r
for any substantial change irn any of the conditions and provisions
of any such licenste;
(5) "citizen of the United States' means ally person who is a Unit- ,
ed States citizen by law, birth, or naturalization, any State, any agen-
cy of a State or a group of States, or any corporation, partnership,
or association organized under the laws of any State which has as
its president or other executive officer and as its chairman of the
board of directors, or holder of a similar office, a person who is a
United States citizen by law, birth or naturalization and which has i
no more of its directors who are not United States citizens by law,
,birth or naturalization than constitute a minority of the number re-
quired for a quorum necessary to conduct the business of the board;
(6) "coastal environment" means the navigable waters (including;
the lands therein and thereunder) and the adjacent shorelines Includ-
ing waters therein and thereunder). The term includes transitional
and intertidal areas, bays, lagoons, salt marshes, estuaries, and
beaches; the fish, wildlife and other living resources thereof;
and the recreational and scenic values of such lands, waters and re-

('7) "coastal State" means any State of the United States In or
* bordering on the Atlantic, Pacific, or Arctic Oceans, or the, Gulf o
Mexico;
(8 "'constructlon" means the supervising, inspection, actual build-
ing, and all other activities incidental to the building, repairing, or
expanding of a deepwater port or any of its components, including,
but not limited to, pile driving and bulkheading, and alterations,
modifications, or additions to the deepwater port;

194

( (9) "control" means the power, directly or indirectly, to deter-
mine the policy, business practices, or decisionmaking process of
another person, whether by stock or other ownership interest, by
representation onta board of directors or similar body, by contract
or other agreement with stockholders or others, or otherwise;
(10) "deepwater port" means any fixed or floating manmade struc-
tures other than a vessel, or any group of such structures, located
beyond the territorial sea and off the coast of the United States and
which are used or intended for use as a port or terminal for the
loading or unloading and further handling of oil for transportation
to any State, except as otherwise provided in section 1522 of this
title. The term includes all associated components and equipment,
including pipelines, pumping stations, service platforms, mooring
buoys, and similar appurtenances to the extent they are located sea-
ward of the high water mark. A deepwater port shall be considered
a "new source" for purposes of the Clean Air Act, as amended, and
the Federal Water Pollution Control Act, as amended;
(11) "Governor" means the Governor of a State or the person
designated by State law to exercise the powers granted to the Gov-
ernor pursuant to this chapter;
(12) "licensee" means a citizen of the United States holding a
valid license for the ownership, construction, and operation of a
deepwater port that was issued, transferred, or renewed pursuant to
this chapter;
(13) "marine environment" includes the coastal environment,
waters of the contiguous zone, and waters of the high seas, the fish,
wildlife, and other livipg resources of such waters; and the recrea-
tional and scenic values of such waters and resources;
(14) "oil" means petroleum, crlde oil, and any substance refined
from petroleum or crude oil;
(15) "person'' includes an individual, a public or private corpora-
tion, a partnership or other association, or a government entity;
(16) "safety zone" means tile safety zone established around a
deepwater port as determined by the Secretary in accordance with
section 1509(d) of this title;
(17) "Secretary" means the Secretary of Transportation;

� 1503. License for ownership, construction, and operation of deel-
water port--Requirement; restrictions oR ntillzation of deepwater port
(a) No person may engage in the ownership, construction, or opera-
tion of a deepwater port except in accordance with a license issued pur-
suant to this chapter. No person may transport or otherwise transfer
any oil between a deepwater port and the United States unless such port
has beepl so licensed and the license is in force. A deepwater port, li-
censed pursuant to the provisions of this chapter, may not be utilized-
(1) for the loading and unloading of commodities or materials
(other than oil) transported from the United States, other than ma-
terials to be used in the construction, maintenance, or operation of
the high seas oil port, to be used as ship supplies, including bunker-
ing for vessels utilizing the high seas oil port,
(2) for the transshipment of commodities or materials, to the
United States, other than oil,
(3) except in cases where the Secretary otherwise by rule pro-
vides, for the transshipment of oil, destined for locations outside the
United States,

(c) The Secretary may issue a license in accordance with the provisions
of this chapter if-
(1) he determines that the applicant is financially responsible
and will meet the requirements of section 1517(1) of this title;
(2) he determines that the applicant can and will comply with
applicable laws, regulations, and license conditions;
(3) he determines that the construction and operation of the
deepwater port will be in the national interest and consistent with
national security and other national policy goals and objectives, in-
cluding energy sufficiency and environmental quality;
(4) he determines that the deepwater port' will not unreasonably
interfere with international navigation or other reasonable uses of
the high seas, as defined by treaty, convention, or customary inter-
national law;

195

(5) he determines, in accordance with the environmental review
criteria established pursuant to section 1505 of this title, that the
applicant has demonstrated that the deepwater port will be con-
structed and o~perated using best available technology, so as to pre-
vent or minimize adverse impact on the marine environment;
(6) he has not been inforlned, within 45 days of the last public
hearing on a proposed license for a designated application area, by
the Administrator of the Environmental Protection Agency that the
deepwater port will not conform with all applicable provisions of
the Clean Air Act, as amended, the Federal Water Pollution Con-
trol Act, as amended, or the Marine Protection, Research and Sanc-
tuaries Act, as amended;
(7) he has received the opinions of the Federal Trade Commis-
sion and the Attorney General, pursuant to section 1506 of this title,
as to whether issuance of the license would adversely affect com-
petition, restrain trade, promote monopolization, or otherwise create
a situation in contravention of the antitrust laws;
(8) he has consulted with the Secretary of the Army, the Secre-
tary of State, and the Secretary of Defense, to determine their views
on the adequacy of the application, and its effect on programs with- 4
in their respective jurisdictions;
(9) the Governor of the adjacent coastal State or States, pursuant
to section 1508 of this title, approves, or is presumed to approve,'
issuance of the license; and
(10) the adjacent coastal State to which the deepwater port is
to be directly connected by pipeline has developed, or is making, at
the time the application is submitted, reasonable progress, as deter- ?
-mined in accordance with section 1508(c) of this title, toward de-
veloping, an approved coastal zone management program pursuant
to the Coastal Zone Management Act of 1972.
' d) If an application Is made under this chapter for a license. to con-
struct a deepwater port facility off the coast of a State, and a port of
the State which will be directly connected by pipeline with such deepwater
port, on the date of suca application-
(1) has ex.ting plans for construction of a deep draft channel
and har'br; and
(2)h 'a either (A) an active study by the Secretary of the Army �
relating to the construction of a deep draft channel and harbor, or
�(B) a pending application for a permit under section 403 of this title,
for such construction; and
(3) applies to the Secretary for a determination under this sec-
tion within 30 days of the date of the license application;
the Secretary shall not issue a license under this chapter until he has
examined and compared the.economic, social, and environmental effects
of the constiuction and operation of the deepwater port with the economic,
social and environmental effects of the construction, expansion, deepen-
ing, and operation of such State port, and has determined which project
best serves the national interest or that both developments are warranted.
The Secretary's determination shall be discretionary and nonreviewable.

(h) Licenses issued under this chapter shall be for a term of not to
exceed 20 years. Each licensee shall have a preferential right to renew
'his license subject to the requirements of subsection (c) of this section,,
* upon such conditions and for such term, not to exceed an additional '10;
years upon each renewal, as the Secretary determines to be reasonable
and appropriate.

� 1504. Procedure-Regulations; issuance, amendment, or rescission;
scope
(a) The Secretary shall, as soon as practicable after January 3, 1975,
and after consultation with other Federal agencies, issue regulations to
carry out the purposes and provisions of this chapter, in accordance with
the provisions of section 553 of Title 5, without regard to subsection (a)
thereof. Such regulations shall pertain to, but need not be limited to,
application, issuance, transfer, renewal, suspension, and termination of li-
censes. Such regulations shall provide for full consultation and coopera-
tion with all other interested Federal agencies and departments and with
any potentially affected coastal State, and for consideration of the views
of any interested members of the general public. The Secretary is fur-
ther authorized, consistent with the purposes and provisions of this chap-
ter, to amend or rescind any such regulation.

196

(f) For all timely applications covering a single application area, the
Secretary, in cooperation with other involved Federal agencies and de-
partmehts, shall, pursuant to section 4332(2)(C) of Title 42, prepare a
single, detailed environmental impact statement, which shall fulfill the
requirement of all Federal agencies in carrying out their responsibilities
pursuant to this chapter to prepare an. environmental impact statement.
In preparing such statement the Secretary shall consider the criteria estab-
lished under section 1505 of this title.

(h)
(2) Notwithstanding any other provision of this chapter, an adjacent-
coastal State may fix reasonable fees for the use of a deepwater port
facility, and such State and any other State in which land-based facilities
directly related to a deepwater port facility are located may set rea-
sonable fees for the use of such land--hbased facilities. Fees may be fixed
under authority of this paragraph as compensation for any ecomlloic cost
attributable to the construction and operation of such dleepwatcr port ald
such land-based facilities, which cannot be recovered under other au-
thority of such State or political subdivision thereof, including, but not
limited to, ad valorem taxes, and for environmental and administrative
costs attributable to the construction and operation of such deepwater
port and such land-based facilities. Fees under this paragraph shall not
exceed such economic, environmental, and administrative costs of such
State. Such fees shall be subject to the approval of the Secretary. As
used in this paragraph, the term "land-based facilities directly related to
a deepwater port facility" means the onshore tank farm and pipelines
connecting such tank farm to the deepwater port facility.
(3) A licensee shall pay annually in advance the fair market rental
value (as determined by the Secretary of the Interior) of the subsoil
and seabed of the Outer Continental Shelf of the United Slates to be
utllt.Pd by the deepwater port, including the fair market rental value
of the right-of-way necessary for the pipeline segment of the port located
on such subsoil and seabed.
:,i.(i ('1)' The Secretary shall approve or deny any application for a desig-
a'teid application area submitted pursuant to this chapter not later than
90',days after the last public hearing on a proposed license for that area.
(2) In the event more than one application is submitted for an applica-
tion area, the Secretary, unless one of the proposed deepwater ports.
clearly best serves the national interest, shall. issue a license according
to the following order of priorities-
(A) to an adjacent coastal State (or combination of States), any
political subdivision thereof, or agency or instrumentality, including-
a wholly owned corporation of any such government;
i ..' (13) to a person who is neither (i) engaged in producing, re-
fi'nfining, or marketing oil, nor (ii) an affiliate of any person who is
",i."- 'engaged in producing, refining, or marketing oil or an affiliate of
:any such affiliate;
i:: (C) to any other person.
(3) In determining whether any one proposed deepwater port clearly
beSt serves the national interest, the Secretary shall consider the follow-
ing factors:
(A) the degree to which the proposed deepwater ports affect
the environment, as determined under criteria established pursuant
to section 1505 of this title;
(B) any significant differences between anticipated completion
dates for the proposed deepwater ports; and
(C) any differences in costs of construction and operation of
the proposed deepwater ports, to the extent that such differential
may significantly affect the ultimate cost of oil to the consumer.

� 1505. Environmental review criteria-Establishment; evaluation
of proposed deepwater ports
(a) The Secretary, in accordance with the recommendations of the
Administrator of the Environmental Protection Agency and the Ad-
ministrator of the National Oceanic and Atmospheric Administration and
after consultation with any other Federal departments and agencies hav-
ing jurisdiction over any aspect of the construction or operation of a deep-
water port. shall establish, as soon as practicable after January 3, 1975,
environmental review criteria consistent with the National Environmental
Policy Act. Such criteria shall be used to evaluate a deepwater port as
proposed in an application, including---
(1) the effect on the marine environment;
(2) the effect on oceanographic currents and wave patterns;

197

(3) the effect on alternate uses of the oceans and navigable waters,
such as scientific study, fishing, and exploitation of other living and
nonliving resources;
(4) the potential dangers to a deepwater port from waves, winds, ,
weather, and geological conditions, and the steps which ca-n be
taken to protect against or minimize such dangers;
(5) effects of land-based developments related to deepwater
port development;
(6) the effect on human health and welfare; and
(7) such other considerations as the Secretary deems necessary
or appropriate.

(b) The Secretary shall periodically review and, whenever necessary,
revise in the same manner as originally developed, criteria established
pursuant to subsection (a) of this section.

� 1506. Antitrust reviw---Opinions of Attorney General and tederal
Trade Commission; defense to judicial proceedings, license inadmissible
(a) The Secretary shall not issue, transfer, or renew any license pur-
{uant to section 1503 of this title unless he has received the opinions of
the Attorney General of the United States and the Federal Trade Commis-
sion as to whether such action would adversely affect competition, restrain
trade, promote monopolization, or otherwise create a situation in con-
travention of the antitrust laws. The issuance of a license under this
chapter shall rot be admissible in any way as a defense to any civil or
criminal action for violation of the antitrust laws of the United States,
nor shall It in any way modify or abridge any private right of action
under such laws.

� 1507. Common carrier status; discrimination prohibition; en-
forcement, suspension, or termination proceedings
(a) For the purpose of chapter 39 of Title 18 (sections 831--837 of
Title 18), and part I of the Interstate Commerce Act (sections 1-27 of
Title 49), a deepwater port and storage facilities serviced directly by such
deepwater port shall be subject to regulation as a common carrier in ac-
cordance with the Interstate Commerce Act, as amended.
(b) A. licensee under this chapter shall accept, transport, or convey
without discrimination all oil delivered to the deepwater port with re-
spect to which its license is issued. Whenever the Secretary has reason
to believe that a licensee is not operating a deepwater port, any storage
facility or componentl. thereof, in compliance with its ohligations as a com-
mon carrier, the Secretary shall commence an appropriate proceeding
before the Interstate Commerce Commission or he shall request the At-
torney General to take appropriate steps to enforce such obligation and,
iyhere appropriate, to secure the imposition of appropriate sanctions.
T'he Secretary may, in addition, proceed as provided in section 1511 of this
title to, suspend or terminate the license of any person so involved.

� -lo08. Adjacent coastal States-Designation; direct pipeline con-
nectlons; mileage; risk of damage to coastal environment, time for
degnaiotu
(a)(1) The Secretary, In issuing notice of application pursuant to
section 1504(c) of this title, shall designate as an "adjacent coastal
State" any coastal State which (A) would be directly connected by pipe-
line to a deepwater port as proposed in an application, or (B) would be
located within 15 miles of any such proposed deepwater port.
(2) The Secretary shall, upon request of a State, and after having
received the recommendations of the Administrator of the National
Oceanic and Atmospheric Administration, designate such State as an
"adjacent coastal State" if he determines that there is a risk of damage
to the coastal environment of such State equal to or greater than the
risk posed to a State directly connected by pipeline to the proposed deep-
water port. This paragraph shall apply only with respect to requests
made by a State not later than the 14th day after the date of publication
of notice of an application for a proposed deepwater port in the Federal
Register in accordance with section 1504 (c) of this title. The Secretary
shall make the designation required by this paragraph not.later than the
45th day after the date he receives such a request from a State.

198

(b) (1) Not later than 10 days after the designation of adjacent coastal
States pursuant to this chapter, the Secretary shall transmit a complete
copy of the application to the Governor of each adjacent coastal State.
The Secretary shall not issue a license without the approval of the (Gov-
ernor of each adjacent coastal State. If the Governor fails to transmit
his approval or disapproval to the Secretary not later than 45 days after
the last public hearing on applications for a particular application area,
such approval shall be conclusively presumed, If the Governor notifies
the Secretary that an application, which would otherwise be approved
pursuant to this paragraph, is inconsistent with State programs relating to
environmental protection, land and water use, and coastal zone manage-
ment, the Secretary shall condition the license granted so as to make it
consistent with such State programs.
(2) Any other interested State shall have the opportunity to make its
views known to, and shall be given full consideration by, the Secretary
regarding the location, construction, and operation of a deepwater port.
(c) The Secretary shall not issue a license unless the adjacent coastal
State to which the deepwater port is to be directly connected by pipeline
has developed, or is making, at the time the application is submitted, rea-
sonable progress toward developing an approved coastal zone manage-
ment program pursuant to the Coastal Zone Management Act of 1972
in the area to be directly and primarily impacted by land and water de-
velopment in the coastal zone resulting from such deepwater port. For
the purposes of this chapter, a State shall be considered to be making
reasonable progress if it is receiving a planning grant pursuant to sec-
tiln 305 of the Coastal Zone Management Act.
(d) The consent of Congress is given to two or more coastal States
to negotiate and enter into agreements or compacts, not in conflict with
any law or treaty of the United States, (1) to apply for a license for
the ownership, construction, and operation of a deepwater port or for the
transfer of such license, and (2) to establish such agencies, joint or other-
wise, as are deemed necessary or appropriate for implementing and carry-
ing out the provisions of any such agreement or compact. Such agree-
ment or compact shall be binding and obligatory upon any State or party
thereto without further approval by Congress.

�i 1510. International agreements
The Secretary of State, in consultation with the 'Secretary, shall seek
effective international action and cooperation in support of the policy and
purposes of this chapter and may formulate, present, or support specific
proposals in the United Nations and other competent international organ-
izatlons for the development of appropriate international rules and regu-
lations relative to the construction, ownership, and operation of deep-
water ports, with particular regard for measures that assure protection of
such facilities as well as the promotion of navigational safety in the vicini-
ty thereof.

'� 1514. flemnedies-(Cirinilnal penalties
(a) Any person who willfully violates any provision of this chapter
or any rule, order, or regulation issued pursuant thereto shall on con-
viction be fined not mnore than $25,000 for each day of violation or im-
prisoned for not more than 1 year, or both.
(b) (I) WVhenever on the basis of any informiati6i--available to Thiff
the Secretary finds that any person is in violation of any provision of this
chapter or any rule, regulation, order, license, or condition thereof, or
other requirements under this chapter, he shall issue an order requiring
such person to comply with such provision or requirement, or he shall
bring a civil action in accordance with paragraph (3) of this subsection.
(2) Any order issued under this subsection shall.state with reason-
able specificity the nature of the violation and a tithe for compliance, not
to exceed thirty days, which the Secretary determines is reasonable, taking
Into account the seriousness of the violation and any good faith efforts
to comply with applicable requirements.
(3) Upon a request by the Secretary, the Attorney General shall com-
mence a civil action for appropriate relief, including a permanent or tem-
poiary injunction or a civil penalty not to exceed $25,000 per day of such
violation, for any violation for which the Secretary is authorized to issue
a compliance order under paragraph (1) of this subsection. Any action
undel this subsection may be brought in the district court of the United
States for the district in which the defendant is located or resides or Is
doing business, and such cou\rt shall have jurisdiction to restrain such
violation, require compliance, or impose such'penalty.

199

(c) IUpon a request by ti0S4a6ph~tr~r 5Q~h~tlri''v1C dl rn
an action In an approptlittKdtdiribi eUttTt tjj~dPtVWbf~ftJ I tt. o c
able relief to redress a~~g~btbu ~any I-rovisfon or Ulis
chapter, any regulation 't66tttaivile'qt1a lte1i dkdltinPr TIW IliCQ! 151' P01iil ioti. TI'l
district courts of the UfUE;a~s1eia~qt~~ud~~a%~~l~~it~~ i uSUcl,
relief as is necessary or ~ t~nauator~ or prohut ,II V" iii-
iunctive relief, ineiiUt~tatli~i~tipf~MedRWesIOS~aN-~at cry damfage's and
pyPnitive. damages. punitive damiages.
N ) i) Ay vessel, Vecjiqq3)~fr~L o tbt Iinnnci orcaIa
tivitipes, used. in a violatkipilf, Ihflub taiignltuifti any ruol or regulat ion
lssdect pursuant to this for any civilpeat
assessid or criminal fialelini~l6pb~e Ri~Pnarcoe Iainst. in any
'district court of the uif1i~g~ hereof: hot an
'vessel ashall be ijable un~tvl M1 dt l1hbl~nbtlt6 6WjqeP%,,o or morce of I the owner s,
or bareboat chiarterers, OWaesatb1%'hti~~r~d~oe~ ;t'Wengn~jft violation, a conspnting
party or privy to such vibliftioty privy Io sech violation.

�1515. Citizen Civil t& EihiDl i4ffkItlcntvAW cseorotovry
district court jurisdlctio~istvict Court Jurisdiction
(a) Except as provided(tMr dcsvkLIIiI &l9&!jj� UT-0fil~ihy( tbbr�6nthis s~ct ion, anly pero
may continence a civil a~ff~tl~i.~his own behalf, Nwhn-
ever such action collstit�ytP~ RuAvfbt ~~ ase or coot ro'.ersv-
(2 ) against any person1 tiulb~Tadflitg a~l&) ~ ntdState-S. 3
(B) any Other gOernAtatts v r gency to the o
tent permitted by the etVn~A~~dhlit, h C(1rwlitj ol oo w
is, alleged to be it, 01 iiljp oh this atr Or n
condition of a license jsq~itqMffff 0ftigjnrmg~tani to tibis chapter. Of'
(2) against the SecretA~ %*liPWt tl~e ~iCilbd~'fi~~fsatr a fatt--o'
thle Secretary to pefrili~dttf1y~iv'iyh~~.t~b~~e ti rwhiuuIlt ii?
not 'hiserftionary with VI%~~vparAYtck %2W~k:tY'agajjj~t nritio rougigh ag':ilnsc
the Secretary munder thi)fl0gF 3bll tIj iah5irtbociri the- district
court for' tile District O~UlMil f Ofe apQluror~riato
adjacent coastal State. adjacent e'oastal State,.
lit suit s brought under tfSahtpifl4&tWhbPhnah uior shall ha'. e, jiiri'cc'c-
tion, without 'regarri tdlrtluae 'Iikttt16jt 1iW)bhVfvM~ya~ov tig&,gjii. (1rsy, or then citizenship
of the parties, to enforM' inkikldtilh~etOiildnA~olhltro n odto
of a license, issued pursfr&ra it6'tihit ijWiNir1bl~C44fbr~ ordter the Secretary to
Perform such act or duyrrugsaA~ ~tas the. case may lie.

(d The Court, in 1ssuiR*Yaff ~fi~r~ub~-d&Jt 1W4M a~dfiin 0oq1gArpjj~r-nY action hrnvrIMl pur-
suant to subsection (a) crtOs Of ttaon(in-
eluding reasonable atr hhitjlnes)to ,ant' party when-
*eVeOr thre court determin~A6gh&tIW Wr~ndftWgr'�ol~gaaa awrd1 ppopiae

�1516. Iudicial rei*; ~&snujuket~islw~w~ui~~~t~ risd ic lion of Croutts;
of appeal . of appeal
Any Person suffering ~ 1s1~c~iltigdcreyaler ct or ;T
grieved by the Serea.i heeim'teiaef'ydcrm9 mnhdfy., rcnew-X so
pend, or revoke a Tha dAr',P6lL 4j3 '4das after an: such 110-
cision is made, sock juTiIrCiW(,Vb diM~W ,d in thlP Utile,! Stateps
Court of Appeals for th4nifh~ ll'tl earest. adji~Cen t coast al
State is locat.ed. A er~llafmet1lglvM aggrievoil IV hthe Secre-
tary's decision within tl1#ri�a9Mkijjifi of this chapterF if lie.
(A) has participated bd iiu#biyepoeins efr
the Secretary (or if he aIM ~d�tC -l Mviiqte, he can slow Othat his
failure to do so was cau~bduigY tlle~Y'~'a llbt ~t' failure to liroviioe thE'~
required notice); and' requLiredl notice); and
(B) Is adversely the Sec~retary's actionl.

�1517. LibltIOdhaRM1i~I~btfi;ie~~;jWjbbjditia; penalty,; n1otico and
hajng; separate bf&nlnndlpMtnsnwtl~i~n~boto wioihlig.hu r 1
surety surety
(a) (1) The discharge freso a vessel
'within any safety zone, n4Ahi'a*sji ~ cns~eiee~~t'd~hbnrcie oil From another
Vessel at a deepwater pdiQsis,5 rdceaappbg'h uitdlae port is tprohih~icd.
(2) The owner or 6peraftWl RIn ~Wsslg Of ui&M~casi~ bfldlp~~ ictenseo of a d(eputeaterU
port from which oil is dhbfglshfed Fft~bjbjo th~is Sub)SeC~lc stat,! ho
assessed a civil penalty �Mefeih~MoifNterniai1O, for. ec' Ij violat i'ri. No
penalty shall be aesdeksth bwwEascotw'6pijtdvv or the( lieec~et
has been given notice h ~il~igslEmsug oil sur-h cl!-aryi. Each
violation Is a separate of~Aot4 Rbea~~TerrystoIt with-
hold, at the request of tfSd a'tui&a~~if~blsbt~gcrpr!by s-ection "1
of Title 46, of any vess%1i atheoorpeat4 of vutich is Sidi-et' 11)
the foregoing penalty.,o~twzy egtndl:ruf in sii ftvs(IS cc n t
filing of a bond or ethex torueS'cc'u

.200 200

(b) Any individual in charge of a vessel or a deepwater port shall
notify the Secretary as soon as he has knowledge of a discharge of oil.
Any such individual who fails to notify the Secretary immediately of such
discharge shall, upon conviction, be fined not more than $10,000 or im-
prisoned for not more than 1 year, or both. Notification received pur-
suant to this subsection, or information obtained by .the use of such noti-
fication, shall not be used against any such individual In any criminal
case, except a prosecution for perjury or for giving a false statement:
(c) (1) Whenever any oil is discharged from a vessel within any safety
zone, from a vessel which has received oil from another vessel at a deep-
water port, or from a deepwater port, the Secretary shall remove or ar-
range for the removal of such oil as soon as possible, unless he determines
such removal will be done properly and expeditiously by the licensee of
the deepwater port or the owner or operator of the vessel from which the
,discharge occurs.
(2) Removal of oil and actions to minimize damage from oil discharges
shall, to the greatest extent possible, be in accordance with the National
Contingency Plan for removal of oil and hazardous substances established
pursuant to section 1321(c) (2) of this title.
(3) Whenever the Secretary acts to remove a discharge of oil pursuant
to this subsection, he is authorized to draw upon money available in
the Deepwater Port Liability Fund established pursuant to subsection (f)
of this section. Such money shall be used to, pay promptly for all cleanup
costs Incurred by the Secretary in removing or in minimizing damage
caused by such oil discharge.
(d) Notwithstanding any other provision of law, except as provided in
subsection (g) of this section, the owner and operator of a vessel shall
be Jointly and severally liable, without regard to fault, for cleanup costs
and for damages that result from a discharge of oil from such vessel
within any safety zone, or from a vessel which has received oil from an-
other vessel at a deepwater port, except when such vessel Is moored at
a deepwater port. Such liability shall not exceed $150 per gross ton or
$20,000,000, whichever is lesser, except that if It can be shown that such
discharge was the result of gross negligence or wtllful misconduct within
the privity and knowledge of the owner or operator, such owner and
operator shall be jointly and severally liable for the full amdunt of all
cleanup costs and damages.
(e) Notwithstanding any other provision of law, except as provided in
subsection (g) of this section, the licensee of a deepwater port shall be
liable, without regard to fault, for cleanup costs and damages that result
from a discharge of oil from such deepwater port or from a vessel moored
at such deepwater port. Such liability shall not exceed $5'0,000,000, ex-
cept that if it can be shown that such damage was the result of gross
negligence or willful misconduct within the privity and knowledge of
the licensee, such licensee shall be liable for the full amount of all clean-
up costs and damages.
(f) (1) There is established a Deepwater Port Liability Fund (herein-
ifter referred to as the "Fund") as a nonprofit corporate entity which
may sue or be sued In its own name. The Fund shall be administered
by the Secretary.
(2) The Fund shall be liable, without regard to fault, for all cleanup
costs and all damages in excess of those actually compensated pursuant
to subsections (d) and (e) of this section.
(3) Each licensee shall collect from the owner of any oil loaded or
unloaded at tilh deepwater port operated by such licensee, at the time of
loading or unloading, a fee of 2 cents per barrel, except that (A) bunker
or fll-t oil for theo Ilce of anly vessel, and (nl) il which was transported
thrlllogli tho trnls-Ala;ka pipeli.le, shtaull ot be subject 1o such11 eotIectlOII.
Such collections shall be delivered to the F'und at such timnes and l11 such'
mnaiumer as shall be prescribed by the Secretary. Such collectionrs shall
cease after thie amount of money in the Fund has reached $100,000,000,
unless there are adjudicated claims against the Fund yet to be satisfied.
Collection shall be reaumed when the Fund Is. reduced below $100,-
000,000. Whenever the money In the Fund is less than the claims for
cleanup costs and daulages for which It is liable under this section, the
'l'und shall borrow the balance required to pay such claims from the
United States Treasury at an Interest rate determined by the Secretary
of the Treasury. Costs of administration shall be paid from the Fund
only after appropriation in an appropriation bill. All sums not needed
for administration and the satisfaction of claims shall be prudently In-
vested in income-producing securities issued by the United States and
approved by the Secretary of the Treasury. Income from such securities
shall be applied to the principal of the Fund.

201

(g) Liability shall not be imposed under subsection (d) or (e) of this
section if the owner or operator of a vessel or the licensee can show that
the discharge was caused solely by (1) an act of war, or (2) negligence
on the part of the Federal Government in establishing and maintaining
aids to navigation. In addition, liability with respect to damages claimed
by a damaged party shall not be imposed under subsection (d), (eo), or
(t) of this section if the owner or operator of a vessel, the licensee, or
the Fund can show that such damage was caused solely by the negligence
of such party.
(h)

-(5) In any case where te owner or operator of a vessel or the licensee
of a deepwater port from which oil is discharged acts to remove such
oil in accordance with subsection (c)(1) of this section, such owner or
operator or such licensee shall be entitled to recover from the Fund the
reasonable cleanup cost incurred in such removal it he can show that
such discharge was caused solely by (A) an act of war or (B) negligence
on the part of the Federal Government in establishing and maintaining
aids to navigation.

() (1) The Secretary shall establish by regulation procedures for the
filing and payment of claims for cleanup costs and damages pursuant to
this chapter.
(2) No. claims for payment of cleanup costs or damages which are filed
with the Secretary more than 3 years after the date of the dischargo gtv-
ing rise to such claims shall be considered.
(3) Appeals from any final determination of the Secretary pursuant to
this section shall be filed not later than 30 days after such determination
in the United States Court of Appeals of the circuit within which the
nearest adjacent coastal State is located.

(k)(1) This section shall not be Interpreted to preempt the field
of liability or to preclude any State from imposing additional require-
ments or liability for any discharge of oil from a deepwater port or a
vessel within any safety zone.
(2) Any person who receives compensation for damages pursuant to
this section shall be precluded from recovering compensation for the
same damages pursuant to any other State or Federal law. Any person
who receives compensation for damages pursuant to any other Federal
or State law shall be precluded from receiving compensation for the'same
damages as provided In this section.

(I) Tho Secretary shall require that any owner or operator of a vessel.
usl.tig Tny leepwvater port, or ally licensee of a deopwater port, shall carry
Insurance or give evidence of other financial responsibility in an amount
surflcielt to moeet the liabilities Imposed by this section.

(m) As used in this section the term-
(1) "cleanup costs" means all actual costs, including but not
limited to costs of the Federal Government, of any State or local
government, of other nations or of their contractors or subcon-
tractors incurred in the (A). removing or attempting to remove. or
(B) taking other measures to reduce or mitigate damages from, any
oil discharged into the marine environment in violation of subsec-
tion (a) (1) of this section;
(2) ':damages" means all damages (except cleanup costs) suf-
fered by any person, or involving real or personal property, the
natural resources of the marine environment, or the coastal environ-
ment of any nation, Including damages claimed without regard to
ownership of any affected lands, structures, fish, wildlife, or biotic
or natural resources;
(3) "discharge" includes, but is not limited to, any spilling, leak-
Ing, pumping, pouring, emitting, emptying, or dumping into the
marine environment of quantities of oil determined to be harmful
pursuant to regulations issued by the Administrator of the Environ-
mental Potection Agency; and
(4) "owner or operator" means any person owning, operating,
or chartering by demise, a vessel.

202

� 1518. IRelationship to other laws--Federal Constitution, Iaws, alnd
treaties applicable; other Federal requirements applicable; stat us of
deepwater port; Federal or State authorities and responsibilities within
territorial seas unaffectedl
(a) (1) The Constitution, laws, and treaties of the United States shall
apply to a deepwater port licensed under this chapter and to activities
connected, associated, or potentially interfering with the use or operation
of any such port, in the same manner as if such port were an area of ex-
clusive Federal jurisdiction located within a State. Nothing in this chap-
ter shall be construed to relieve, exempt, or immunize any person front
any other requirement imposed by Federal law, regulation, or treaty.
Deepwater ports licensed under this chapter do not possess the status of
islands and have no territorial seas of their own.
(2) Except as otherwise provided by this chapter, nothing in this
chapter shall in any way alter the responsibilities and authorities of a
State or the United States within'the territorial seas of the United States.

(b) The law of the nearest adjacent coastal State, now in effect or
hereafter adopted, amended, or repealed, is declared to be the law of the
United States, and shall apply to any deepwater port licensed pursuant
to this chapter, to the extent applicable and not inconsistent with any
provision or regulation under this chapter or other Federal laws and
regulations now in effect or hereafter adopted, amended, or repealed.
All such applicable laws shall be administered an, 'nforued by the ap-
propriate officers and courts of the United States. For purposes of this
subsection, the nearest adjacent coastal State shall be that State whose
seaward boundaries, if extended beyond 3 miles, would encompass the
site of the deepwater port.

(c) Except in a situation involving force majeure, a licensee of a deep-
water port shall not permit a vessel, registered in or flying the flag of
a foreign state, to call at, or otherwise utilize a deepwater port licensed
under this chapter unless (1) the foreign state involved, by specific agree-
ment with the United States, has agreed to recognize the jurisdiction of
the United States over the vessel and its personnel, in accordance with
the provisions of this chapter, while the vessel is located within the
safety zone, and (2) the vessel owner or operator has designated an agent
in the United States for receipt of service of process in the event of any
claim or legal proceeding resulting from activities of the vessel or its
personnel while located within such a safety zone.

(d) The customs laws administered by the Secretary of the Treasury
shall not apply to any deepwater port licensed under this chapter, but all
foreign articles to be used in the construction of any such deepwater
port, including any component thereof, shall first be made subject to all
applicable duties and taxes which would be imposed upon or by reason
of their importation if they were imported for consumption in the United
States. Duties and taxes shall be paid thereon in accordance with laws
applicable to merchandise imported into the customs territory of the
United States.

(e) The United States district courts shall have original jurisdiction
of cases and controversies arising out of or in connection with the con-
struction and operation of deepwater ports, and proceedings with respect
to any such case or controversy may be instituted in the judicial districL
in which any defendant resides or may be found, or in the judicial dis-
trict of the' adjacent coastal State nearest the place where the cause of
action arose.

203

NOTE

Deepwater ports in state waters.

The Deepwater Port Act of 1975 only governs ports located beyond the
territorial limits of the United States. Consequently, ports located within
the jurisdiction of the states are not controlled by this act. In the Sub-
merged Lands Act of 1953, 43 U.S.C. �l1301 et seq. (1970), Congress gave the
coastal states the proprietary right in the lands under the ocean for a dis-
tance of three geographic miles. This proprietary right is subject to the
overriding constitutional right of the federal government to regulate that
area for the purpose of "commerce, navigation, national defense, and interna-
tional affairs." �1314(a). If a deepwater port is located within this area
then the state will exercise control over it. Since the port is in navigable
waters, the Corps of Engineers must issue a permit in order for the port to
be constructed. Yet the Corps is not required to adhere to the standards set
by the Deepwater Port Act; thus, no guarantee exists that such ports would
meet these minimum safety and environmental criteria.1 Furthermore, no coor-
dination is required between the Corps and the Department of Transportation
which controls ports established under the Deepwater Port Act.2 Finally, ports
established with the states' jurisdictions lack the coverage granted under the
insurance and liability sections of the Deepwater Port Act.3 A discrepancy
could exist, therefore, between deepwater port activities within a state's
jurisdiction and those outside that three mile limit.

Onshore effects of deepwater ports.

Although the deepwater port is an offshore facility, repercussions will
be felt onshore. Adjacent coastal state status is a valuable asset for any
state which might be affected by a deepwater port. Economic effects arise
from the construction of the port and its onshore facilities. Environmental
impacts result from an oil spill at or near the port or from construction of
onshore facilities. Many of these factors are anticipated by the Deepwater
Port Act although others are as yet unresolved.
Status as an adjacent coastal state can be obtained in one of the three
ways stipulated in �1508 of the Deepwater Port Act. As will be discussed later,
status sought by application to the Secretary of Transportation, �1508(a) (2),
presents the greatest difficulty. Once a state is designated an adjacent coastal
state, it acquires benefits from deepwater port operations and controls over them.

1. Office of Technology Assessment, United States Congress, Coastal
Effects of Offshore Energy Systems, Vol. I (November 1976) at 83.
[Hereinafter cited as Office of Technology Assessment).

2. Id. at 185.

3. Id. at 84.

204

Several sections of the Deepwater Port Act grant privileges to adjacent
coastal states unexercisable by other states. If an application for a deep-
water terminal license has been received, adjacent coastal states have the
right to obtain the complete application in order to evaluate the impact.
�1508(b) (1}. Plans for a deep draft channel and harbor of an adjacent coastal
state to be connected by pipeline to the port will be considered by the Secre-
tary when evaluating the deepwater port application. �1503(d). The Secretary
may, if he deems necessary, deny the deepwater port license on this basis.
�1504(h) (2) allows the state to set fees for the use of a deepwater port facility
and any land-based facilities located within that state. Furthermore, an adjacent
coastal state, seeking to establish a deepwater terminal, is given priority when
there are more than one applicant for an application area. �1504(1) (2). Thus,
a state derives benefits, especially economic, from being declared an adjacent
coastal state.
These states also exercise considerable control over the construction and
operations of a deepwater port. The most significant aspect lies in the adjacent
coastal state's governor's veto power over the construction of the port. This
stipulation is noteworthy in that the federal government defers to the states
in the nationally significant area of Energy Policy.4 Furthermore, the state
can affect activities taking place on the outer continental shelf, previously
an area of exclusive federal jurisdiction.5 In addition to this veto power,
l1518(b) stipulates that the law of the nearest adjacent state, where approp-
riate, shall apply to the port. Finally, the effects of the deepwater port
on adjacent coastal states are considered throughout the application review
process, e.g. �H1501(a)(5) and 1508(b)(1). Thus, adjacent coastal states are
given crucial influence over deepwater port activities.
Although the governor of the adjacent state has the ultimate veto power,
the legislative branch can inhibit deepwater port development. In 1971, Dela-
ware passed a law banning the construction of new refineries in its coastal
region.6 The New Jersey Legislature, although refusing to enact a complete
ban on deepwater ports, made each energy facility to be located in the coastal
region subject to individual review.7 This type of legislation could produce
conflicts between the governor and the legislators if deepwater ports are planned
for these types of areas.
At this point, only one controversy has arisen regarding the Deepwater
Port Act's adjacent state stipulation. Two ports were recently licensed, Sea-
dock off of the Texas coast and LOOP (Louisiana Offshore Oil Port, Inc.) off
of Louisiana. Florida sought adjacent coastal state status claiming that the
operation of these two ports would expose Florida to a risk of oil spills caused
by ships passing close to her shores. The Secretary of Transportation denied
this application finding that no increased risk of oil spills would result from
the new ports. This precedential decision deserves closer scrutiny.

4. A. Dawson, Deepwater Port Development in North Carolina: The Legal
Context, UNC Sea Grant Pub. 75-08 (1975) at 18.

5. Id.

6. Office of Technology Assessment, supra note 1, at 180.

7. Id. at 183.

205

The Secretary of Transportation, in determining adjacent coastal state
status, is required to ascertain whether there is a risk of damage to the
potential adjacent state's coastal environment "equal to or greater than the
risk posed to a State directly connected by pipeline to the proposed deepwater
port." 01508(a)(2). This requirement necessitates three decisions: (1) what
is "the coastal environment"; (2) what is "risk of damage"; and (3) what risks
should be considered.8 In order to determine the answers, a consulting firm,
Arthur D. Little, Inc., was hired to make a determination of legislative intent.
"Coastal environment" was defined as the area designated by �305(b)(1) of the
Coastal Zone Management Act of 1972, 16 U.S.C. ��1451 et seq (Supp. V, 1975).9
They found "risk of damage" by "combining the consequences of a damaging event
with its probability of occurence. "10 The crucial decision came when the
Secretary found that the risks to be considered were only those geographically
proximate to the port facility or its port to shore pipeline.11 Consequently,
the probability of any state obtaining adjacent status, unless actually near
or connected to the deepwater port, is limited.
In ruling on the Florida application, the Secretary relied on the lack of
increased volume of oil to be transported. Yet this decision overlooked the
different type of transportation involved.12 Deepwater ports handle supertankers
which, as a result of their size, have little manuverability.13 The Straits of
Florida could present significant difficulty to these tankers and thus raise
the probability of oil spills.14
Thus, in this first decision on adjacent coastal state status, two note-
worthy precedents have been set. In adjudging the potential hazards resulting
from a deepwater terminal, volume, not the character of the transport, is to be
considered.15 Also, the riska to be evaluated are only those proximate to the
port and its pipelines.16 With judicial review of such decisions limited to
their arbitrariness and capriciousness, adjacent coastal state status will be
difficult to obtain.17

8. 6 E.L.R. 10123 at 10124.

9. Id.

10. Id.

11. Id.

12. Id.

13. Id.

14. Id.

15. Id. at 10125.

16. Id.

17. Id.

206

As illustrated, acquiring adjacent coastal state status can be invaluable
in controlling the repercussions of a deepwater port on a state's coastal region.
Two major areas of impact should be considered when assessing these effects.
Economic impacts result from not only the construction but also the maintenance
of deepwater port onshore and offshore facilities. Environmental concerns center
around potential oil spills and land-based facilities. An analysis of each of
these considerations illustrates the positive and negative aspects of deepwater
port development.
As with any major industrial venture, the construction of deepwater ports
and their onshore facilities has a substantial effect on the state and local
economy. A recent study on the impact of this development off of North Carolina,
South Carolina, and Georgia indicated that the principal benefits gained by these
regions are derived from resources flowing into the region.18

These include: (1) compensation to workers during the construction
and operation of the refineries, unloading terminal, pipelines, and
onshore storage; (2) compensation to landowners for the purchase or
leasing of land; and (3) tax payments to county and state govern-
ments. In each case the resources come from outside the Region
(i.e., from the petroleum firms), but they are captured by households
or public agencies in the Region.19

The costs of the facilities result from support systems such as highways, schools,
housing, water supplies, electricity facilities, and transportation. In addition,
certain indirect effects occur such as increases in local retail services to
serve the large number of employees required by the port facility.20
Another study analyzed the total economic picture in phases, beginning with
the feasibility study and ending with the maintenance operation of port facilities.21
The study noted that the total process takes approximately five years with major
construction during years 4 and _522 Employee population would peak during year
3 and then decrease to a maintenance level after construction is completed.23
The study reached three major conclusions.

First, during the first two or three years of . . . port develop-
ment state and local revenues from onshore components of the
activities cannot be expected to cover the costs of serving the

18. Coastal Plains Regional Commission. The Coastal Plans Regional Commission
Deepwater Terminal Study, Executive Summary (January 1975). [Hereinafter
cited as Coastal Plains Regional Commission].

19. Id. at 9.

20. Id. at 10.

21. R. Bish, "Fiscal Effects of OCS Oil & Gas Development and Deepwater
Port Development", Coastal Effects of Offshore Energy Systems Vol. II.
(Office of Technology Assessment 1976).

22. Id. at 22.

23. Id.

207

population involved in the offshore activities. Second, if all
onshore components of an offshore development take place within
a single state, beginning in either the third or fourth year
revenues from onshore components will contribute larger per
capita revenues from the population associated with the offshore
development than is generated in other sectors of a state's econ-
omy. . . Furthermore, unless large extra expenditures are
necessitated by offshore development, the favorable net fiscal im-
pact will be very large in most states . . . . Finally, if differ-
ent onshore components are undertaken in different states, general
conclusions on revenue surplus are not valid as it would be possible
for one state to bear most of the costs of servicing the direct
population, while another state obtained the revenues from the
onshore components of the development.24

The repercussions of these conclusions present two points. During the first
few years, revenues from the development will be lower than the amount necessary.
to support the added population; consequently, financial aid must be arrang=d.25
In addition, if different states 'are involved, financial adjustment may be neces-
sary for that state which bears the brunt of the costs while obtaining little
of the benefits.26 Nevertheless, with the construction and operation of deep-
water port onshore facilities, increased per capita revenues will inject more
money into state and local funds.27 These funds would, hopefully, inure to the
benefit of the existing population by providing better public services and lower
per capita taxes.28 A balance must, therefore, be reached between pre- and post-
construction phases when anticipating deepwater port development.
An outgrowth of this economic impact is an alteration in the sociological
profile of the community. During the construction phase, workmen and their
families will move into the area, some remaining when this period is completed.
A sudden influx of population could upset the balance of a sparcely populated
area due to overtaxation of service, recreation, and transportation facilities.29
Increased population could also increase crime.30. The state and local officials
responsible for the planning of deepwater port development should consider this
factor, in addition to economic and environmental aspects, in their deliberations.

24. Id. at 27-28.

25. Id. at 28.

26. Id.

27. Id. at 3.

28. Id.

29. 8 Southwestern Law Journal 967 at 973.

30. Id.

208

When focusing on environmental impact, oil spills immediately emerge as
the major consideration. As history has indicated, oil spills spell environ-
mental disaster for fish and wildlife, oyster beds, and wetland areas. Orig-
inally oil was transported by tankers which could manuver in the narrow and
shallow harbors. As the tankers grew in size, their drafts exceeding harbor
channel depthslightening operations began.31 Under this system, supertankers
either unload their entire cargo onto barges which then take the oil to the
terminal or the supertankers unload enough cargo to lighten the ship which may
then clear the channel.32 Both the shifting of the oil from the tanker to the
barges and the manuvering of the tankers and barges in the harbor provoke poten-
tial oil spills.33 Furthermore, such spills occur close to shore, thus guaran-
teeing adverse coastal effects.
The advocates of deepwater ports emphasize two features which lessen the
probability of spills. First, the number of tankers needed to transport oil
will be reduced.34 As deepwater terminals are located several miles from shore,
channel depth and width are no problem. Thus, larger ships carrying large
volumes of oil may use these ports. A recent study on the feasibility of
deepwater ports off the Delaware and New Jersey coasts found that the deepwater
port/supertanker system has a "two-to-one advantage over small tankers based on
total spillage within 50 miles of shore."35 Second, in the event of an accidental
spill at the port, the distance necessary for the oil to travel to reach shore
is great. The likelihood that the oil will reach the coastal area is, therefore,
lessened.36
In the event of an oil spill by the port facility or a vessel within its
safety zone, liability would be governed by the Deepwater Port Act. �1517. An
interesting aspect of this provision is the establishment of a Deepwater Port
Liability Fund which will provide for clean-up costs and damages over the lia-
bility limits set in �1517(d) and (e). �1517(f). Furthermore, 81517(k)(1) allows
states to impose additional liability limits which can be higher than those of the
federal government. Nevertheless, with the difficulties implicit in the clean-up
operations, emphasis should be placed on prevention rather than remedies.
A second environmental problem concerns the potential harm resulting from
onshore operations. For construction operations of offshore facilities, approxi-
mately 20 acres of waterfront land are needed for a port intended to handle 1.6
to 2 million barrels per day.37 The onshore tank-farms store ten times this daily
capacity; thus, as a typical storage tank holds 600,000 barrels, 25 tanks on 125
acres would be necessary for this size port.38 The larger the port, the larger the

31. Office of Technology Assessment, supra note 1, at 174.

32. Id.

33. Id. at 175.

34. Id. at 193.

35. Id.

36. Id.

37. Id. at 192.

38. Id.

209

tank farm required. If a refinery is to be built, more land would be used.
Construction of these facilities necessitates leveling and filling of the land
which could prove harmful to valuable wildlife and vegetation areas in the
coastal region.39 The amount of impact varies with the size of the facility.
The onshore facilities may also contribute to water and air pollution.40
The Deepwater Port Act requires that the Secretary of Transportation
establish environmental review criteria to be used in evaluating a deepwater
terminal application. �1505. Included in this review is an analysis of the
"effects of land-based developments related to deepwater port development."
�1505(a)(5). The Coast Guard, having been delegated this responsibility by the
Secretary, specifically looks to the effects of land-based developments on
stream and river flow, water quality and supply, air quality, and alternate
land and water uses. This latter criterion includes wetlands, wilderness areas,
preserves, wild and scenic rivers, existing and proposed sanctuaries, historical
and cultural areas, recreational uses, agricultural uses, residential and
commercial uses, transportation uses, and power generation and transmission
uses.41 These environmental effects are a major consideration in the applica-
tion deliberation process. �1503 (c) (5).
As a result of these various effects, the adjacent coastal state must weigh
carefully the decision to approve a deepwater port facility. Even if approved,
the state may wish to impose conditions on the license based on existing state
programs, �1508(~(1), or arrange to lessen the impact on the coastal area by
other legislation.e Many states utilize environment quality programs, similar
to NEPA, which would apply to any onshore facilities of a deepwater terminal.41
Coastal commissions would also be useful in assessing and controlling the
consequences of development.43 One commentator has suggested that the police
power of the state may also be utilized, one benefit being that local officials
will have control.44 Three approaches, encompassed by this police power, apply:
zoning, regulatory ordinances, and the public nuisance doctrine.45
Zoning enables the local government to restrict the location of onshore
storage areas and refineries and controls the growth of the area due to an
increase in population. Thus, concern for human and environmental welfare can

39. Coastal Plains Regional Commission, supra note 18, at 15.

40. Id.

41. 33 C.F.R. �148.109(p) (1976).

42. 8 Southwestern Law Journal 967 at 969.

43. Id.

44. Id.

45. Id. at 976.

210

be abated. The major hurdle is "whether the regulation zoning is reasonably
related to a goal that is subject to police power protection."46 Health,
safety, and welfare are valid reasons and, more recently, conservation and
aesthetics are allowable rationals.47
A variety of regulatory schemes may be utilized by the local government
to control onshore inpacts of deepwater terminals. Tax incentives and local
ordinances often control pollution from these facilities.48 Ordinances regulat-
ing pollution have been upheld by the courts.49
A final type of action can be taken under the public nuisance doctrine.
A major asset of this doctrine is its applicability to any situation or activity
which may prove injurious or unpleasant to the public as a result of the deep-
water port.50 Oil storage areas and refineries have been declared public
nuisances;51 yet, these facilities should be planned prior to their construction.
One drawback of this nuisance approach lies in the fact that it must be enforced
by public officials who are often unwilling or unable to shoulder this responsi-
bility.52 Consequently, the citizens themselves may be required to exert the
necessary pressure, either by petitioning that official or bringing their own
private suits.
With the increasing energy crunch, need for more expedient and efficient
energy transportation is present. The deepwater port system provides one remedy.
Before such a system is implemented, however, thought should be given to major
onshore impacts. The Deepwater Port Act requires that environmental and some
economical considerations be made yet it behooves the adjacent coastal state
and its local governments to involve themselves in the planning stage in order to
guard against adverse impacts. Only in this manner will an adequate balancing
of benefits and burdens be effectuated.

46. Id. at 977.

43. Id.

48. Id. at 982.

49. Id. at 984.

50. Id. at 987.

51. Id.

52. id. at 986.

211

CHAPTER SEVEN

COMPREHENSIVE COASTAL PLANNING

During the decade of the 1960's American's became aware of both the im-
portance and fragility of the coastal areas of the country. Scientists showed
that coastal wetlands, once considered wastelands, were important components
in the life cycles of many marine fishes and other wildlife. At the same time,
it became evident that the resources of the coastal areas were rapidly being
depleted due to over-development. In the 1970's the problem of energy develop-
ment in coastal areas was added to the already acute pressures on these re-
sources.

The response to these developments has been an attempt to stimulate' com-
prehensive plann'ing' a-nd' 7( a'gment of coastal areas. The federal government has
provided a legal framework for management and federal funds, While the states
are given the opportunity to actually establish and operate the program.

This chapter contains materials designed to stimulate analysis of coastal
planning and regulation. Section one sets out the federal requirements while
section two provides the responses of several states to the problem, with
emphasis on California and North Carolina. Section three focuses on the im-
plementation of coastal planning and section four involves the constitutional
questions that have arisen in the courts regarding the legal tools it is
necessary to use in order to comprehensively manage these resources.

~~~~~~~~~212~~~~~

212

SECTION I - FEDERAL LAW

COASTAL ZONE MANAGEMENT ACT of 1972

86 Stat. 1280 (1972), as amended,
16 U.S.C. �iL451-1464 (1976)

� 1451. .CailgresiOonal fLndigs . ' '. :' '
The Congress findsathat- ' - : ': ..:. "'?: . -,.-:..
(a) There is, a&;.nitlonal Interest in.:,theifectire.manageme. be-
ficial use,.proteqtUon, ';nd develop.ment of the oastai- zo ne, ? 'i ir;, '.
*: (b�.. .Th'..oastal ope, .erihci a, v.sac 6elat4ra,9 qlm'ti&i tc-
reational, eqologlea1, i0dustriaL;'a nd ;estlheU:, resources ;. Iila!bte- .1i
potenteal. il..to .thbae pes and; tuture- well-being of th. Natiop(. "'
. (c) 'The eiT rlilgq/ competing demqao . s,opo', the lands a;a,wlgtMoru
of our coastal zone occasi one d 'br population.-growth and ecojoic de-
y.elopnment, in:eIudingi'.-eqirements 4'qovr :.n.duti, commerce,. xesidentital
developmegt, rerea/o';, ex.traction, otf mfiBeke resources and fossil fuels,
transportatidon af4l ;avlg tioi, wasto, dispos,' and harvesting of fish,
shellfish,. and il. ylJnteg marlneh resoerces, h&avi.tesnlted ;in thk'oes of
living marine .re. res~. ,:wUllfe,;. nutrient-rdih /areas, perm.aeM. and
adverse changes 'to. .cologeal systems, deCareing open spsce .pr ptf blic
use, and shorellne:erosiop. ' ! '. ' ' ' .'
(d.) The coastal zone, and the fish, shellfish, other living marine re-
sources, and wildlife therein, are ecologically fragile and consequently
extremely vulnerable.to destruction by man's alterations. .
(e). Important ecological,: cultural, historic, and esthetic VayUei in
the coastal zone which are essential to the well-being of all citizeps are
being irretrievably damaged.or lost.
(f) Special natural -and scenic characteristics. are being damaged by
ill-planned development that threatens these values.
(g) In light of. competing demands and the urgent need to protect
and to give high priority to natural systems in the coastal zone, present
state and local institutional arrangements for planning and regulating
land and water uses in such areas are inadequate.
(h) The key to more effective protection and use of the. land and
water resources of the coastal zone is to encourage the states to exercise
their full authority over the lands and waters in the coastal zone by as-
sisting the states, in cooperation with'Federal and local governments and
other vitally affected interests, in develdping land and water use pro-
grams for the coastal zone, including unified policies, criteria, standards,
methods, and processes for dealing with land and water use decisions
of more than local significance.
-(i) The national objective of attaining a greater degree of energy
self-sufficiency. would ..be advanced by providing Federal financial as-
sistance to meet state and local needs resulting from new or expanded
energy activity in or affecting the coastal zone..:
� 1452. Congressional declaration of policy
The Congress finds and declares that it is the national policy (a) to
preserve, protect, develop, and where possible, to restore or enhance,
the resources of the Nation's coastal zone for this and succeeding gen-
erations, (b) to encourage and assist the states to exercise effectively
their responsibilities in the coastal zone through the development and
implementation of management programs to achieve wise use of the
land and water resources of the coastal zone giving full consideration
to ecological, cultural, historic, and esthetic values as well as to needs
for economic development, (c) for all Federal agencies engaged in pro-
grams affecting the coastal zone to cooperate and participate with
state and local governments and regional agencies in effectuating the
purposes of this chapter, and (d) to encourage the participation of the
public, of Federal, state, and local governments and of regional agen-
cies in the development of coastal zone management programs. With
respect to implementation of such management programs, it is the na-
tional policy to encourage cooperation among the various state and re-
gional agencies including establishment of interstate and regional
agreements, cooperative procedures, and joint action particularly re-
garding environmental problems.

213

Xi tlhe O u-pposes:of this. chapte'--;'
` :fL',t ~')fghe 'cdk tal 'zbne) beans thlecdastal waters (aincluding
ibha'an& a 'thereih"' a"i' thereu'der) sInd the' adjacent shorelands
-(xlctuding the waters therein' ahd thereundery, strongly influenced
by! each other and in' proximity to the shorelines of the several
coastal states 'and Includes islands, transitiodal and intertidal areas,
,it~"uinarshe.: woetlatnds, nd beaches. The ionA' ektends, in Great
'.IAkes wateir to Lth'!-iiternationai boundary bete#ii;;the United
St*'e an:d Canadai and, tf oth'er areal, 'seaward t: the outer limit
'o 'thir -United 'Satei tfir+torlal 'sea.: The zon 'exitends Inland'from
,the shoreilnes 'only to the 'extent necessary. to 'ontrbl shorelands,
;the-uses of which have a direct and significant impact on the coastal
:waters. Excluded froni the coastal zone are lands the use of which
is by law subject solely to the discretion ,.oor ,which is held in
trust by the Federal Government, its officers or agents.
(2) The term "coastal waters" means' '(A)' in the Great Lakes
area, the ma'ters within 'the'territorial Jurisadiction of the United
States consisting 0f the Great Lakes, 'theireconnecting waters, har-
bd', "roadsteads, 'and estuary-type areas such as bays,'shallows, and
h0jrs he and" (B) .In other areas, tbose' watiat, adjacent to the shore-
.1fi1s," Which eontf 'a:"' measurable qltfintlty'or. percentage: of 'sea
'aterr, ineluding, btit.i'it 'limited tl. dound,, baySoons, bayous,
W1id*sand esartluafle;.. - -:: .s- ' . , ..-.. ..
(3) The term "coastal state" means a state of the United States
in,'or bordering on, the 'Atlantic, Pacific, or Arctic Ocean, the Gulf
of Mexico, Long Island Sound, or one or more-of the Great Lakes.
For the purposes of this chapter, the term also includes Puerto
Rico, the Virgin Islands, Guam and American Samoa.
(4) The term "Coastal energy activity" means any of the follow-
ing activities if, and to the extent that (A) the conduct, suppori,
or aclltation of such activity requires and involves the siting,
construction, expansion, or operation of any equipment or facility;
and (B) any technical requirement exists which, in the determina-
tion' of the Secretary, necessitates that the siting, construction,
expansion, or operation of such equipment or facility be carried out
in, or In close proximity to, the coastal' zone of any coastal state;
(I) Any outer Contlnental Shelf energy activity.
(ii) Any transportation, conversion, treatment, transfer, or
(iii) Any transportaton, transfer, or storage of oil, natural
gas, or coal (Including, but not limited to, by means of any
';: deepwater port, as defined in section 1502(10) of Title 33).
For purposes of this paragraph, the siting, construction, expansion,
or operation of any:equipment or facility shall be "in close proximity
to" the coastal zone of any coastal state if such siting, construction,
expansion, or operation has, or is likely to have, a significant effect
on such coastal zone.
(6) The term "energy facilities' means any equipment or facility
Which is or will be used primarily-
(A) in the exploration for, or the development, production,
'conversion, storage, transfer, processing, or transportation of,
:.any energy resource; or
(B) for the manufacture, production, or assembly of equip-
ment, machinery, products, or devices which are involved in any
activity described in subparagraph (A).
The term Includes, but is not limited to (i) electric generating
plants; (Ii) petroleum refineries and associated facilities; (it)
gasification plants; (iv) facilities used for the transportation, con-
'version, treatment, transfer, or storage of liquefied natural gas;
;.(v) uranium enrichment or nuclear fuel processing facilities; (vl})
01il and gas facilities, Including platforms, assembly plants, storage
depots, tank farms, crew and supply bases, and refining complexes;
(vii) facilities including deepwater ports, for the transfer of petrole-
um; (viii) pipelines and transmission facilities; and (ix) terminals
which are associated with any of the foregoing.
(6) The term "estuary" means that part of a river or stream
or other body of water having unimpaired connection with the
open sea, where the sea water is measurably diluted with fresh
water derived from land drainage. The term includes estuary-type
areas of the Great Lakes.
(7) The term "Estuarine sanctuary" means a research area which
may include any part or all of an estuary and any island, transitional
area, and upland in, adjoining, or adjacent to such estuary, and
which constitutes to the extent feasible a natural unit, set aside
to provide scientists and students the opportunity to examine over a
period of time the ecological relationships within the area.
18) The term "Fund" means the Coastal Energy Impact Fund
'established by section 1456a(h) of this title.

214

(9) The term "land use" meanH activities which are conductted In,
or orn the shorelands within, the coastal zone, subject to the require-
ments outlined In section 1466(g) of this title,~ , -,
(10) The term "local - goiernment" means any political subdivt-
sion of, or any gipecial entity created by, any coastal, state which
(in whole or part) Is located In. pr has authority over, such state's
coastal zone ,and . which (A) has -iauthority to levy taxes,.: or to
establish and collect user fees, or (B) provides any iiublic, facility
oir public service which is financed In 'whole or part by taxes or
user fees. The term Includes, but Is not limited to, any school
district, fire district, tranbportation authority, and any other special
purpose district or authority.
(11) The term "management program" includes, 'but is not limit-
ed to, a comprehensive statement In words, maps, illustrations, or
other media of communication, prepared and adopted by the'state
in accordance with the provisions of ibis chapter. setting forth
objectives, policies,'-and standards to gulde public and private uses
of lands and waters In the coastal zone.
*(12) The term "outer Continental Shelf energy activity" l~e~ans
any exploration for, or any development or production of, oif'or
natural gas from the outer Continental Shelf (as defined' In section
13.31(a) of Title 43), or the siting, construction, expansibri. or
operation of any new or' expanded energy facilities directly required
by such exploration, development, or production.
(13) The term "person"~ means day Individual;' any corporation,
partnership, association, or other entity organized 'or existing' under
the laws of any state; the Federal Government, any state,,regional,
or local .government,; or any entity of~ 'any such Federal,',state,
regional, or local government..
(14) The term "public facilities and public services" zifeajis fa-
cilitice or services which are financed, In whole or 'in part, by' any
state or political subdivision thereof, including, but -not limited to,
highways and secondary roads, parking, mass transit, docks, navi-
gation aide, fire and police protection, water supply,' waste collection
and treatment (including drainage), schools and education, and
hospitals and health care. Such term 'may also include any other
facility or service so financed which the* Secretary finds will spport
increased population. . :
*(16) 'The terin"Secretary" means' theSecretaryll of Commerce.
(16) The term "water use" means activities' which are eoiducted
in or on the.~ water; but does 'not mean or Include the establishment
of any water quality standard .or criteria or the. regulation".Df the
discharge or runoff, of water pollutants, except' the -stazidart. erI-
teria, ,or regulations. which 'arO Jncorperatdd In; any ~0 ograBln ,TO
quired by the provisionsI setoj (f) of thistil.
� 144. *Maasgepint pogra devlopmnt a'at*-Anthorization
(a) 'The SecretaJry way make. grants. tod any coastal sawe-
(1"under suscjn(t) ~of tiie secitl'iv for 7the purpose of;'Sabi, t-.
- Ang rehtaelntedevelopmOAt If. a' mnalgemhent' prgran' for tihe
landa-ud-ater rsouaresn-of it rhisafzomes *n(V
4j)unde~r eubsection.)'o tlbis, aectIoir fid'the' purpoe Otfass-
In& -alook state In'0 th~coninption of th610010elalienti" aila to.eigtial

-~~~~~~~~~~~~w - ft ' , '4

()he manajei~xent program for' e-shuAa~ t],e slLinclude'
each ofth~ o~oii'roquiretnerfs,..
.I A idetlfication bt, the boundaries ogthbacoaatal, Z94e 40jbect
t hmpnage' ep,. Programs'' >:~
(),Adefintio whtssW*nttueperm Isble ~Jan4' uses
Snd, water uses witld -.the coastal zone which. bv, 4gt'and
significant impact on the coastal waters.l
'(F) An, Inventory'. end designation of areas 'of particular concern
'Within the coastal 'zone. *.:
..(4) An -identification of the means, by -which the state; proposes
to exert control over 'the land -uses. and :water, uses refeired to in
paragraph , (2), Including a listing of . ?elevant' constituitionlal' pro-
visions, laws, regulations, and judicial decisions..
(4) Broad guidelines on priorities ot usess In particular areas,
including specifically those' uses of lowest priority.
V~~~~~~~~~~ (6). A description of the organizational structure proposed to
implement Buell management program, including the .responsibilitiel
and Interrelationships of local, areawide, state, regional, and inter-
state agencies In the. management process.

215

(7) A definition of the -term "beach" and a planniaig pqrocess for
the protection of, and access to, public beaches~ and other ~Public
coastal areas of environmental, recreational, historical, esth~l~c, eco-
logical, or cultural value;
(a) A planning process for energy facilities likely to be located
,in, oF whicb mnay significantly affect, the coastal zone,,-including,
but not limited .to, a process for anticipating and managijig the
impacts from such facilities;
(D.) A planaing..processjfor~,,(A) assessing the effects -ofshoreline
erosion (however caused), and (B studying and evaluating ways
to ~control, or-lessen the impact of, such erosion, anc4 to ,,restorc
areas adversely.,affceted by such erosion.
go management -program, Is- required to meet the requirements- IW para-
graphs (7). (8),~' (-; 9) bqfror~ October 41,19-78.

(c) The Secietary"May make a' grant annually to any coastal State for
the purposes described, in subsection (a)1(1) of this section if-adeich state
reasonably 'deminantrafea to the' satisfaction of the Secretary'that such
grant will -be Used toc develop a management program consistent'V0Ith the
requireisents set forth-in section 1455 of this title. The amount' Q any
such grant shall vat exceed 80 per centum- of such state's costs for such
purposegAin any one y'ear., No coastal state to eligible to receiyb more
than four grants pursuant to this subsection. After the initial grant
Is made to any, coastal state pursuant to - this subsection, no 5ibsequent
grant shall, be, made to much Owae - pursuant to this subsection onteo" the
Secretary, finds that such' stat e Is satisfactorily developing kits w ge-
ment program. C4-
Grante toy eompletion of, development-asnd hnVM*RmtatiOnM Of ma'aage.
metpogmams; limits and eligibility Moeqtuameats
(d) (1) The So~trkry May make a grant annually to any- coasta tate
for the purposes described Sin subsection-,(a) (2) or, this sectioni if the
Secretary" finds that such state meoets~ te -eligibility requirements set
forth in paragraph (2).- The amount of any such gfrant shall nlot exceed
8 0 per eantum of the costs. for such purposes in any one year ,,

Q-YfA ca~t-14tieum-a~i'~41uttihwth4

~~ itizi~~~h &m~~~ke~auit i1g-l*
ailing k ~diq4ctiuh tisiz,

(C). t osake e~te f 1 n~ c gatfh4

- ~ ude sat6ai 34~~ ocan

priate- to imvry out the purposes'of thim, subsectla.
(3) No-managemnent progfam,- for m~i~gansae ade -z~this
subsection "boll be, considered, anapro,'pos foIr, -1of
~~~~~- mloetion 16 t-o tills' tile
(e) Gats under 'this section shall be made to, 'and alo Ht~zong,
the coastal states Pursuant -to ru-les, and,-'regulations- promulgated. by the
-Secretary except that- -, -, ,
Wd I -)n grant shall hbe` made ~under A~his section in,,- anwamount
-which "' Moro. than 10- Per, enhtum of the total amount appropriated
to cartry out 'the - purposes, of this, section, thbtt the Bersta'yi -may
-- waive this-lmiitation In'thie case of any coastal state which ia-eligible
for grants under subsection (id) of this section; and - -a
(2) no grant shall be miade under -this section In an ,,amount
which is less than I per centum'-of 'the total amount appropjiated
to carry out the purposes of- thissgection, but the Secret"'7 shall
waive'thIM limitation In, the case of any coastal. state wh~o-i'ewi~esto
suchsa waiver. --

2 16

Reve-ron of unobllated grants
(f) The amount of any grant (or portion thereof) made under this
section which is not obligated by the coastal state concerned during the
fiscal year for which It was first authorized to' be obligated by such
state, or during the fiscal year immediately following, shall revert to
the Secretary who shall add such amount to the funds available for grants
under this section. ., ,. . . ...
; Glnts to other iollttcal subdivisions '
.(g) With the approval of the Secretary, any coastal state' may allo-
cate to any local-government, to any areawide agency designated under
section -3394 'of-Vltle 42 to any regional agency, or to any interstate
agency, a portion.of any grant received by it under'this section for the
purpose of carrying out the provisions of this section.
sb- mluloe of program for revlew s eo - aproV -
(h) Any coastal state which has completed. the development of its
management program shall submit such program to the Secretary for
review and approval pursuant to section 1455 of this title. Whenever
the Secretary approves the management program of any coastal state
under section 1455 of this title, such state thereafter-
(1) shall net be eligible for grants under this section; except
that -uch state may receive grants under subsection (e) of this
section in order to comply with the requirements of paragraphs (7),
(8), and (9) of subsection (b) of this section; and
(2) shall be eligible for grants under section 1455 of this title.
L xpration date e grant authority
(I) The' e athority to make grT. uWder.bths s ection shall ezxpire on
September. 3.0179, j '"
� 14551 iAdministratiVe grants-Authorization
(a) The Secretary may make a grant annually to any coastal state
for not more than 80 per centum of the costs of administering such
state's management program if the Secretary (1) finds that such pro-
gram meets the requirements of section 1454(b) of this title, and (2)
approves such program in accordance with subsections (c), (d), and
(e) of this section. . - -
(b) Such grants shall be allocated to the states with approved pro-
gramls based on rules and regulations promulgated by the Secretary
which shall take into account the extent and nature of the shoreline
and area covered by the plan, population of the area, and other relevant
factors: Provided, That no annual grant made under this section shall
be, in excess of $2,000,000 for fiscal year 1975, in excess of $2,500,000
for fiscal year 1976, nor In excess of $3,000,000 for fiscal year 1977:
Provided. further, That no annual grant made under this section shall be
less than 1 per centum of the total amount appropriated to carry out
the purposes of this section: And provided further, That the Secretary
shall waive the application of the 1 per centum minimum requirement
as to any grant under this section, when the coastal State involved
requests such a waiver.
(c) Prior to granting approval of a management program submitted
by a coastal state, the Secretary shall find that:
(1) The state has developed and adopted a' management program
for its coastal zone in accordance with rules and regulations promul-
gated by the Secretary, after notice, and with the opportunity of full
participation by relevant Federal agencies, state agencies, local gov-
ernments, regional organizations, port authorities, and other interest-
ed parties, public and private, which is adequate to carry out the pur-
poses of this chapter and is consistent with the policy declared in sec-
tion 1452 of this title.
(2) The state has:
(A) coordinated its program with local, areawide, and ,nter-
'state plans applicable to areas wit'hin the coastal zone existing
on January' I of the year in which the state's management
program is submitted 'to the Secretary, which plans have been
developed by a local government, an areawide agency desig-
nated pursuant, to regulations. established under section 3884
of Title 42,. a regional agency, or an interstate agency; and
(B). established an effective mechanuali-fof continuing con-
sultation and coordination between the management agency
designated pursuant to paragraph (5) of this subsection and
with local governments, interstate agencies, regional agencies,
and areawide agencies within the coastal zone to assure the
full participation of' such local governments and agencies in
-carrying out the 'purposes of this chapter; except that the
Secretary shall not find any mechanism to be "effective" for
purposes of this subparagraph unless it includes each of the
following requirements:

217

(1) Such management agency is required, before Imple-
menting any management program decision which would
conflict with any local zoning ordinance, decision., or, other
action, to Bond a notice of such management program deci-
sion to any local government whose zoning authority Is
affected thereby.
(ii) Any -such notice sghal,; provide that, Such, lp9_~gm
.Ornuxelt mday',withkin ihik-ty ero bomefft, two
,date' of reesist, obuich, notice, liiuhmit to-'the naW";46niu

Aeclslion,_ fnd-'f' ay6" 1mAcdirndtfon fork alteinativewodokr~o,
it no action it talken during'- eatch period whicth -ild~gY'efU-

uletsi such IAa' ornetV wa~ives Uit~fitht to COnI&in
(ill) Sc~ari~4ment ciey;U n ue .m2t

bi) -i a,.uthorized. iii Its '4iscrotfon. t hol a bic
'bearing unon sui domments,'and -
(E) 6iytxottako imy ikcfld"''Wtbfth: Such -&W

(3) The state has held public hearings in the development of the
management program.
(4) The management program and any changes thereto have been
reviewed and approved by the Governor.

(5) The Governor of the state has designated'a single agency to re-
ceive and administer the grants for implementing the management
program required under paragraph (1) of this subsection.

(6) The state is organized to implement the management program
required under paragraph (1) of this subsection.

(7) The state has the authorities necessary to implement the pro-
gram, including the authority required under subsection (d) of this
section.
V(8') The"'anagemenu-programv provldes for -itequate eonsiders-
' tion of the natiohn.l in terest'involved In'planning9 for, and lit'the
siting of, facilities ~(Includfng" eikergy,-faeiitles tib which 419-
niticantly affect, such state's coastal zoney which are necessaryl'o,
meet requit-emebts'-which are other 'than local in. nature. -In'Ahe
.Case of such.' energy facilities, "the Secretary shall find that the
state has given such consideration to any applica~ble 'Interstate
energy plan orpoam
(9) The management program mnakes ~provision for procedures
whereby specific' areas may be designated for the purpose of preserv-
ing or restoring them for their conservation,' recreational, ecological, or
esthetic values.
(d) Prior to granting approval of the management program.;the
Secretary shall find that the state, acting through its chosen agency, or
agencies, including loc:4 governments, areawide agencies designated
under section 3334 of Title 42, regional agencies, or interstate agen-
cies, has authority for the management of the coastal zone in accord-
ance with the management program. Such authority shall include
power-
(1) to administer land and water use regulations, control devel-
opment in order to ensure compliance with the management pro-
gram, and to resolve conflicts among competing uses; and
(2) to acquire fee simple and less than fee simple interests in
lands, waters, and other property through condemnation or other
means when necessary to achieve conformance with the manage-
ment program.____

218

(e) Prior to granting approval, the Secretary shall also find that
the program provides:
(1) for any one or a combination of the following general tech-
niques for control of land and water uses within the coastal zone;
(A) State establishment of criteria and standards for local
implementation, subject to administrative review and enforce-
ment of compliance;
(B) Direct state land and water use planning and regula-
tion; or
(C) State administrative review for consistency with the
management program of all development plans, projects, or
land and water use regulations, including exceptions and vari-
ances thereto, proposed by any state or local authority or pri-
vate developer, with power to approve or disapprove after
public notice and an opportunity for hearings,
(2) for a method of assuring that local land and water use reg-
ulations within the coastal zone do not unreasonably restrict or
exclude land and water uses of regional benefit.
(f) With the approval of the Secretary, a state may allocate to a lo-
cal government, an areawide agency designated under section 3334 of
Title 42, a regional agency, or an interstate agency, a portion of the
grant under this section for the purpose of carrying out the provisions
of this section: Provided, That such allocation shall not, relieve the
state of the responsibility for ensuring that any funds so allocated are
applied in furtherance of such state's approved management program.
ProgI"M mOdlfleath ":. -Mon'e
(g) Any coastal state 'may 'amend or modify. the managemepnt pro-
gram Which it hab submitted and which has been approved. bythew Sec-
retary under this section, pursuant -to the required procedures described
in subsection (c) of this section. ExceRt with respect to any such amend-
ment which is made before October 1, 1978, for the purpose ofcomply-
ing with the requirements of paragraphs (-), (8), and (9) of section
1454(b) of this title, 'no grant shall be made under this section to.any
coastal state after the date of such an amendment or modification, until
'the Secretary approves such amendment or modification.: - :
(h) At the discretion of the state and with the approval of the Sec-
retary, a management program may be developed and adopted in seg-
ments so that immediate attention may be devoted to those areas with-
in the coastal zone which most urgently need management programs:
Provided, That the state adequately provides for the ultimate coordina-
tion of the various segments of the management program into a single
unified program and that the unified program will be completed as
soon as is reasonably practicable.
' 1456. Coordination and cooperatiolb-FedOral agenciesa .. ,,, ..
(a) In carrying out his functions and responsibilities under this chap-
ter, the Secretary shall consult with, eooperate with,. nd, to the maxi-
mum extent practicable, coordinate his activities with other interested
Federal agencies. . ... -
qquate - 4 efletIao-erwt *f B.dsra l-aencies -
(b). The, G8erotar ,.ha.Il notappro, edthe management prograr asub-
mnite4 by.~:.stftepnrsiua.t to sectioRn J45 9, .ts title unless the views
of Fedekla geesle_ prlse pally .Stedby.-,suceplrogrami have been
.adequ:t-ly odnser;ed;. e . : , . '

..(e ly 1) the eatern1<al'ipgeot !A: ti J Qr4upporting aettvties 'di.ect-
manner .:wh2 isito te"nilmxiiui {extteitiat ie,'l con.istent: Witt' ap-
proveds. taite miaaagetment, vrograms -. ; ,-,.. ...
(2) Any Federal agency which shall undertake any development
project in the coastal zone of a state shall insure that the project is, to
the maximum extent practicable, consistent with approved state man-
agement programs.

219

*()(A) Atefiaproa by thle Secretaryfa stater ~Manage-
meat program, anFy aplcntP' eui~ ~deril 1ieue -. permit
to conduct O~n activity -affecting laxnd qr water uses~ In the coastalvzone of
that Btate shall provide In* thie aLp"plication 'to 'the' licensing 'or" pemitting
agency a certification that the proposed activity complies with the state's
approved program and that such activity will be conducted in a manner
consistent ~with. the, program. At the same time, teppintshall
furnish to the state or Its designated agency a copy of the certification.
with all necessary information and data. Each coastal state shiall, estab-
lish procedures for public' notice in the case of all such 'cerilffic ations
and, to the extent It deems appropriate, procedures for public hearings
In connection therewith. At the earliest practicable time, the state
or its designated agenciy shall notify the Federal agency concerned that
the state concurs with or objects to the applicant's certification. If
the state or Its designated agency fails to furnish the required notifica-
tion within six moaths after receipt of -its copy of the applicant's c-ertifi-
cation, the state's concurrence with the certification shall be conclusively
presumed. No license or permit shall be granted by the Federal.,agency
-until the state or its designated agency has concurred with the. appli-
cant's certification or until, by the state's failure to act, the concurrence
is conclusiv'ely presumed, unless the Secretary,. on his own initiative
or upon appeal- by. the applicant, finds, after providing a, reasonable
opportunity for ,detailed comments from the Federal agency. Involved
and from the state, that the activity Is. consistent with the objectives
of thils chapter, ~or Is otherwise necessary in the Interest of national
security. -~ .*
(13) After the management program of any coastal state has been
approved by the Secretary under section 1455 of this title, any person
who submits to the Secretary of the- Interior any plan for tho'explora-
tion or development of, or production from, any area which b1aa been
leased under-the Outer. Continental Shelf Lands Act (43 'U.S.C.. 1~331
et seq.) and,' regulations under slach.Act. shall, -with. respect: tb ady . ex-
ploration, development; -or production described in such plan: and affect-
Ing any Ia~d"use~ or water use In the opastil zone of such state,# attach
to such plan a certification, that each activity which is diesribed In
detail In such plan comp~lies with such state's approved manaegement
program .,and.. will.be fearkied out in a manner 'censistent with--such pro-
gram. ., 14o J~eiira OffiCial or agency shawt grant such person any homen
or permilt for: any activity described .1n -detsail In such piiin utffit uch
state or Itk designated agency receives a,.copy of such certifiatonc and
plan, together with any 'eather necessary data and informatin. and

(I) such state or its designated agency, In accordance-, with
the procedures required to be established by such state, pursuant
to subparagraph (A), concurs with such person's certification and
notifies the Secretary and the Secretary of thle interior -of such
concurrence; .. -
(ii) concurrence by such state. with such certification to 'co n-
elusively presumed, as provided for in subparagraph (A); or
(iii) the Secretary finds, pursuant to subparagraph (A), that
each activity which to described In detail In such vlan is consistent

.If a, state. conouM, or to conclusively imedumet te_-bopo1uti' Ml t&&-,JFA&0-
tary mnakes-:suckafzgnh-te.poiifl'S.basrabs).*-O
-applicablex'ithtiett~uh~esh-ia~ttalayPi~l toz

such. state abjeete-t0 such, certification an&,Wfthe. SecretarY fa115.te"mLke
a, finding under clause (Wi) -with respwtotto 'such certification;-O0:41f AUch
person falls -substantially-, to comply with s uch -plan as~ fubudtt#*t such
person shall submit- an. amtendment. to., *uft pla, ior* & new.:plear. to tile
Secretary at the, Iutesior;_ With respefti to: =~y amendment oritsew 'plan
submitted to thm--Secretarya-f 'th. Inteiler" pursuaat -to -the-_,proeedin9
sentence, thet appllaabli~ tfmonerield- for purposee.of: concurroeft by Coln-

(d) State and local governments submitting applications for Feder-
al assistance under other Feder'al programs affecting the coastal zone
shall indicate the views of the appropriate state or local agency as to
the relationship of such activities to the approved management pro-
gram for the coastal zone. Such applications shall be submitted and
coordinated in accordance with the provisions of title IV of the Inter-
governmental Coordination Act of 1968. Federal agencies shall not
approve proposed projects that are inconsistent with a coastal state's
management program, except upon a finding by the Secretary that
such project is consistent with the purposes of this chapter or neces-
sary in the interest of national security. _____

220

(C) Nothing in this chapter shall be construed--
(1) to diminish either Federal or state jurisdiction, responsibil-
ity, or rights in the field of planning, development, or control of
water resources, submerged lands, or navigable waters; nor to
displace, supersede, limit, or modify any interstate compact or the
jurisdiction or responsibility of any legally established joint or
common agency of two or more states or of two or more states
and the Federal Government; nor to limit the authority of Con-
gress to authorize and fund projects;
(2) as superseding, modifying, or repealing existing laws appli-
cable to the various Federal agencies; nor to affect the jurisdic-
tion, powers, or prerogatives of the International Joint Commis-
sion, United States and Canada, the Permanent Engineering
Board, and the United States operating entity or entities estab-
lished pursuant to the Columbia River Basin Treaty, signed at
Washington, January 17, 196t, or the International Boundary and
Water Commission, United Stit-, and Mexico.
(f) Notwithstanding any other provision of this chapter, nothing in
this chapter shall in any way affect any requirement (1) established
by the Federal Water Pollution Control Act, as amended, or the Clean
Air Act, as amended, or (2) established by the Federal Government or
by any state or local government pursuant to such Acts. Such re-
quirements shall be incorporated in any program developed pursuant
to this chapter and shall be the water pollution control and air pollu-
tion control requirements applicable to such program.
(g) When any state'd coastal zone management program, submitted
for approval or proposed for modification pursuant to section 1455 of
this title, includes requirements as to shorelands which also would be
subject to any Federally supported national land use program which
may be hereafter enacted, the Secretary, prior to approving such pro-
gram, shall obtain the concurrence of the Secretary of the Interior, or
such other Federal official as may be designated to administer the na-
tional land use program, with respect to that portion of the coastal
zone management program affecting such inland areas.
Medaton of dbmagreemenat
(h) In case of Serious disagreement between any Federal agency and
a coastal state--
(1) in the development or the initial implementation of a man-
agement program under section 1454 of this title; or
(2) In the administration of a management program approved
under section 1455 of this title;
the Secretary, with the cooperation of the Executive Office of the Presi-
dent, shall seek to mediate the differences involved In such disagree-
ment. The process of such mediation shall, with respect to any dis-
agreement described in paragraph (2), include public hearings which
shall be conducted in the local area concerned.
� 1456a. Coastal energy impact program-Administration' and co-
ordination by Secretary; financial assistance; audit; rules and regu-
Lations . .
(a) (1) The Secretary' shall'administer and coordinate, as part of
the coastal zone management activities of the Federal Government pro-
vided for under this chapter, a coastal energy impact program.. Such
program shall consist of the provision of financial assistance to meet
the needs of coastal states and local governments in such states resulting
from specified activities Involving energy development. Such assistance,
which includes--
(A) grants, linder subsection (b) of this section, to coastal
states for the purposes set forth in subsection (b)(4) of this sec-
tion with respect to consequences resulting from the energy activi-
ties specified therein;
(B) grants, under subsection (c) of this section, to coastal
states for study of, and planning for, copsequences relating to new
or expanded energy facilities in, or which significantly affect, the
coastal zone;
(C) loans, under, subsection (d)(1). of this section, to coastal
states and units of general purpose local government to assist such
states and units to provide new or improved public facilities or
public services which are required as a result of coastal energy
activity;

221

"(1) guarantees, -Under 'subsoction, : (d) (2) of t?d6'%Q~tUo and
s!:ubject to the provisions of suboectlo4'f) of this -seti >k'bflbonds
- r.others evidences of indebtedness-A ssued by -coastO4,-tM~- N& and
unit* of~goelral purpose Iuelpuvrninent foi the VurpOjo.pf pr-
,~ *itidng-'nf0nr,' Improvedi publfv~igcilties or- public :44rVid.W'*hIch
SWO-reQU1~t~a '411esult of C~MaSiatftergye activity; f' c""' 10NN

thi; s~~~Maeetol tocootl taes "unitil ofgera xpoJlcl
gove~1nentto eabl '~cb tatewasnd-,unlts, to me biain
under loaneer. guarautoewsunder suscin()l r(Y-fthis
sections Whih they are unable -to . meet- ag they maatakre for reasons
.apecified. M. subsection.,(d) (a) of this section; - and! T
'-(F') - grants, ~ under. subsection- fd),C4-) of this secffoif, 11 oastal
stats -whih: avesuffered, -aro- suff ering; . aro will - auffof!-Oisr un-
avoid~abp.le:s loot. a valuable envil'onmental or recreational rEftUrce;
shall be; provided, -administered,- and -coordinated 'by th5g~.'feeretlfy In
accordance with the provislonsQf thise ection and under the raleS and
regulations required to be promulgated pursuant to paragraph 1(2).
Any such financial assistance shall be subject to audit under section
1459 of this title.; - " "
(2) The Secretary shall promulgate, In accordance with 4eetf a. 14631
of this title, such rules and' regulations,- (including, but not limited to,
those required under subsection (e) of this section as may be necessary
and appropriate to carry out the provisions of this section.

Osatst.- exlenistlonel zlurposes and priority of proceeds;' -
* - a~~upervision by Secretary -
(b). (1), The Secre tary shall make grants annually to coastal Otates,
In accordance with the provisions of this subsection.
(2) The amounts granted to coastal states under this subsection -shall
be, with respect to any such state for -any fiscal year, the suim of the,
amounts calculated, with respect .to esuch state, pursuant to subpara-
graphs '(A), (B3),'(0), and (D):
(A) An amount which bears, >to One4hird or the a~moint-' ap-
propriated for -the. purpose 'of funding grants under this subsection
for such fiscal year, the same ratio that the amount of outerConti-
nental Shelf aDcreage which is adjacent to such state find *hlch
Is newly leased by the Federal Government in the immeiately
preceding fiscal year bears ~to the total amount of outer Con'tiu4ntal
Shelf acreage which is newly leased by the Federal Goverunment
In such preceding year. . - -.,--
(B) An amount which. bears, to one-sixth of the amount ap pro-
priated for - such purpose for such fiscal year, the same riitjo. that
the volume -of oil and,,natural gas produced in the ligmediatiely
preceding fiscal. year. from' the outer ContInental Shel( aei'eago
which is adjacent to such'state and which Is leased by the F6deral
Government bears to the total volume of off and natural gsa po-
duced ;in such year from all, of theoouter Continental Shelf'.4cre-
age which Is leased by the Federal 6oyernment.
(C) An amount which bears, -to' one-sixth of the amolit' ap-
propriated for such purpose for such fiscal year, the ha'aaierst~o
that thb v'olume of oil and natural gas produced -from outer 'Con-
tinental Shelf acreage leased'-by' the Federal Government'vwhich
Is first landed in such state~ n the- Immediately preceding 'fiscal
year bears to the total volume of oil and natural gas produced
from all outer Continental Shelf Wabeage leased by'- the Federal
Government which is first landed' In all of the coastal states in
such year.-; --
(D) An amount which bears, to one-third of the amount appro-
priated for such purpose for such fiscal year, the same, ratio that
the number of Individuals residing In such state in the Immediately
preceding fiscal year who obtain now employment In such year
as a result of new or expanded outer Continental'-Shelf -~nergy ac-
tivities bears to the total number -of individuals residing In all 'of
-.4-th coaxtal.~tatse "1 ensuh,~Ye Who')Qbtaii 4LeW-4p moiu b
*year. as, a -result of09 such, outer COtriental- Swrl onergy- ~,AOUOAOR-
(il (A) he ecetar)shall deterMIAe. DnnUallyTluEamus h
grants t pj)015 -0f40~ thip, subsection. And H~il clletn4~a
ate such'infornifatien 'an -mo~ e'eesi t
M~ach f 1 Inuet llW a~rotide
to te0ceaU s, ~ t s~tne-n al w 4eauta
inforixtlon-&-a" the'Seqrotary way reque$.'Tt 5r~al~qf~
Ch~ sitc~of yapprat ato gnyicReig' &OW'
Ing suchk iuformatlon.~ ... - ,.~
(B) or urps~ o maingealulatloq#xia uer DasrjAhO.

.such.arae-ie ntasaessd of theo1#,tepi4od l~t~r eW
boundare o~nh at~ The etj~o latoral, Seno d~eww
of a coastal state shall be determined as follows; ___

222

(i) If lateral seaward; 'boundaries have Been-'clearly dtfinetl or
fixed by an interstate compact, agreement, or judiclal decision (if
* entered into, agreed to, or issued before July 26, 1976). such
boundaries shall be extended on the basis of the principles of
delimitation used to so define or fix them In such compacts agrlpe-
ment, or decision.
(ii) If no lateral' seaward boundaries, or any portion thereof,
have been clearly defined or fixed by an interstate compact, agree-
V ment, or judicial decision, lateral seaward boundaries shall be
determined according to the applicable principles of law, including
the principles of the Convention on the Territorial Sea and the
Contiguous Zone, and extended on the basis of such principles.
(iii) If, after July 26, 1976, two or more coastal states enter
into or amend an interstate compact or agreement in order to
clearly define or fix lateral seaward boundaries, such boundaries
shall thereafter be extended on the basis of the principles of de-
limitation used to so define or fix them in such compact or agree-
ment.
(C) For purposes of making calculations under this subsection, the
transitional quarter beginning July 1, 1976, and ending September 30,
1976, shall be Included within the fiscal year ending June 80, 1976.
(4) Each coastal state shall use the proceeds of grants received by
it under this subsection for the following purposes (except that priority
shall be given to the use of such proceeds for the purpose set forth in
subparagraph (A)):
(A) The retirement of state and local bonds, if any, which are
guaranteed under subsection (d)(2) of this section; except that,
if the amount of such grants is insufficient to retire both state and
local bonds, priority shall be given to retiring local bonds.
(B) The study of, planning for, development of, and the carry-
ing out of projects and programs in such state which are-
(i) necessary, because of the unavailability of adequate
financing under any other subsection, to provide new of im-
proved public facilities and public services which are required
as a direct result of new or expanded outer Continental Shelf
energy activity; and
(if) of a type approved by the Secretary as eligible for
grants under this paragraph, except that the Secretary may
not disapprove any project or program for highways and
secondary roads, docks, navigation aids, fire and police pro-
tection, water supply, waste collection and treatment (in-
cluding drainage), schools and education, and hospitals and
health care.
(C) The prevention, reduction, or amelioration of any unavoid-
able loss in such state's coastal zone of any valuable environmental
or recreational resource if such loss results from coastal energy
activity.
.(5) The Secretary, in a timely manner, shall determine that each
coastal state has expended or committed, and may determine .that such
state will expend or commit, grants whieb such state has received under
this subsection in accordance with the purpobes set forth In paragraph
(4). The United States shall be entitled to recover from: any coastal
state an amount equal to any-portion of any such grant-received by such
state under thls'subsection whiCh-- .- ' ' .. ; .: I
(A) is not expended or committed by such state, beftbtl 'te close
of the fiscal year immediately following the fiscal year in'-whilch
the grant was disbursed, o ;"':- '
(B) is expended'or- committed by such state for any/'purpose
other than a purpose set forth in paragraph (4). ' ': ; ) / --
Before' disbursing the proceeds of any- 'grant under this subsection to
any coastal state, the Secretary shall require such state to provide ade-
quate assurances of being able to return to the United States any amounts
to which': the preceding sentence tiay apply. ' �
Grants satudy and pannlngl consequence, affeeting eoastal zone relat-
ilus to new or expanded energy faellitles limits on swants
(c) The Secretary shall make grants to any coastal state if the Sec-
retary finds that the coastal zone of such state is being, or is likely to
be, significantly affected by the siting, construction, expansion, or oper-
ation of new or expanded energy facilities. Such grants shall be used
for the study of, and planning for (including, but not' limited to, the
application of theoplanning process included In: a management program
pursuant to section 1454(b)(8) of this title) any economic, social, or
environmental consequence which has occurred, is occurring, or is likely
to occur in such state's coastal zone as a result of the siting, construction,
expansion, or operation of such new or expanded energy facilities. The
amount of any such grant shall not exceed 80 per centum of the cost of
such study and planning.

223

Loauml coastal eltex`y activity icquIrinM Dnew or improved public la"Cetsi
or serviccis guaranteea; relief from, Inabillty to meet oblizatioa s
(d) (1) The Secretary shall make loans to any c oastal atik'te~ alnd to
any unit of' general purpose local government to assist ucb: s~tpe or
unit to provide now or improved public facilities or public services, or
both, which aye required as a result of coastal energy activity. Such
loans shall be made solely pursuant to this 'chapter, and _n& such loan
shall require as a. condition thereof that any such state or unit pled gt
Its full faifth and credit to the repayment thereof. No loan shall be ~made
under this paragraph afterSeptember 30, 1986. '' , "''~%
(2) The Secretary shall, subject to the provisions- of subsectioxn (f) 0of
this section, guarantee, or einter Into commitments to guarantee, the
payment of Interest on, and the principal amount of, any bond or 'other
evidence of Indebtedness if it Is Issued by a coastal state or a unit of
general purpose'-local government for the purpose of providing new or
Improved public facilities or public services,' or both, which are, required
as a result of a coastal energy activity.
(3) If the Secretaryr finds -that any, coastal state or unit oft-general
purpose local government Is unable to meet its obligations pursuant to
a loan or guarantee made under paragraph (1) or (2)r'beftuse the
actual increases in employment 'and related-population resulting from
coastal energy activity and the facilities associated -with such- activity
do not provide adequate revenues to enable such state or, Unit to meet
such -obligations tin accordance with 'the appropriate repayment sched-
ule, the Secretary shall,, after review' of the* informatiork submitted by
such state or unit pursuant to subsection (e) (3) of 'this 'section, take
any of the following actions:
(A) Modify appropriately ths. trms and -conditions of such loan
or guarantee.
(B) Refinance such loan.
(C) Make a supplemental loan to such stater or unit the proceeds
of which shall be applied to the payment of principal and interest
duo under ouch loan or guarantee.
(D) Make a grant to such state or unit the proceeds of which
shall be applied to the payment of principal and Interest due under
such loan or guarantee. '- *
Notwitlistabin ~ttb6kreeia*ngenec~i h ertiy'~

rVc-two~ei-any l ,oan gurantee nix"'ludor pasas" b(k~ )

able -r,-its) 0'bmgwtop om4r,-il it~9 guaate'& y

to sc tt jxtn iatou~t ffdeuto *bfsch 4' rinit
to et gulig qb. A

such .state "to ,'.prev grtn,.to ae-.dq.tai stake pleabl
such statei's ~o'astal zsonet of any'4.'valuable. enviromna n~~~ifal
resources.i uinh, 1006 ~resulto fxrom catleeg eiiy tI-q
tary ffndz-, -thht syuch "tate. ban riotrcieaout unr bsln
(b) of OhA sect1.O;!-Whio ~ape-suf ficin qpeyteueo
such loss. ...?Urt
Rules and. regulational financial asmistance, formula, and iroaedurexri
criteria for review; criteria and procedure. 'for repoyuaenti loan
requirements, term. mand aouditionup latertpat rates
(e) Rules and regulations with respect to the following 'matters shall
be promulgated, by the Secretary as' soon as practicable,'- but nbf-ater
than 270 days after July 26, 1976. '
(1) A formula and procedures for apportioning equitable,, among
the coastal states, the amounts which are available for the' provi-
sion of financial assistance under subsection (d) of this section.
Such formula shall be based on, and limited to, the following factors:
(A) The number of additional individuals who are expected
'to become employed in. new or expanded coastal energy activity,
and 'the related new populatioa, 'who reside in'the respective
coastal states.' .,
(B) The standardized unit costs (asa determinlfed by the
Secretaly by rule), In the relevant regions of such states, for
new or Improved public facilities and public services which
are required as a result of such ep~e mlyetad.h
related new population. epce mlyetad h
(2) Criteria under which the Secretary'~ha~ll review each eoastal
state's compliance with ~the requirements- of subsection; (s), ~)o
this section. '
(3) Criteria and procedures for evaluating .the extent' to wwhfch
any loan or guarantee under subsection (d) (1) or (2) 'Of this
section which Is apidfrbancoslstate or'unit of general

224

purpose local government can be repaid through its ordinary methods
and rates for generating tax revenues. Such procedures shall re-
quire such state or unit to submit to the Secretary such information
which is specified by the Secretary to be necessary for such evalua-
tion, Including, but not limited to-
(A) a statement as to the number of additional individuals
who are expected to become'employed in the new or expanded
coastal energy activity involved, and the related new population,
who reside in such state or unit;
(B) a description, and the estimated costs, of the' new or
improved public facilities or public services needed or likely
to be needed as a result of such expected employment and re-
lated new population;
(C) a projection of such state's or unit's estimated tax re-
ceipts during such reasonable time thereafter, not to exceed
30 years, which will be available for the repayment of such
loan or guarantee; and
(D) a proposed repayment schedule.
The procedures required by this paragraph shall also provide for
the periodic verification, review, and modification (if necessary)
by the Secretary of. the -information or other material required
to be submitted pursuant to this paragraph.
(4) Require.mentsterms, and conditions (which may include the
posting of security) which shall be imposed by the Secretary, in
connection with loans:and guarantees made under subsections (d)
Y . (1) *4d; (2) of. this section, in order to assure repayment within
the time. fixed, to assure that the proceeds thereof may not be used
.to provide publlc aepzvice for an unreasonable length of time, and
otherwiie to prot-t the financial interests of the United States,,.
(6) crlteia' uider which tbh 'Secretary shall establish jatel ',Q
Interest on loans made under subsections (d)(l) and (S)'.of tils
section. Such rates shall not exceed the curren't average' m'arket
yield dn outstanding marketable obligations of the United States
with remaining periods to maturity comparable to the maturity of
such loans.
In developing rules and' regulations untder this subsection, the Secretary
shall, to the extent practicable, request the views of, or consult with,
appropriate persons regarding impcts resulting 'from' coastal energy
activity.

Gua=antees term and conditlonsa full faith and ereditl feeej
Intereeti paylment; daefaults; enforcement by
Attorney Oeneral; inuafflelent funds
(i) (1) Bonds or other evidences of indebtedness guaranteed under
subsection (d)(2) of this section shall be guaranteed on such terms and
conditions as the Secretary shall prescribe, except that-
(A) no guarantee shall be made unless the indebtedness involved
will be completely amortized within a reasonable period, not to
exceed 30 years;
(B) no guarantee shall be made unless the Secretary determines
that such bonds or other evidences of indebtedness will-
(i) be Issued only to investors who meet the requirements
prescribed by the Secretary, or, if an offering to the public is
contemplated, be underwritten upon terms and conditions ap-
proved by the Secretary;
(i) bear interest at a rate found not 'to be excessive by the
Secretary; and
(ll) contain, or be subject to, repayment, maturity, and
other provisions which are satisfactory to the Secretary;
(C) the approval of the Secretary of the Treasury shall be re-
quired with respect to any such guarantee, unless the Secretary of
the Treasury waives such approval; and
(D) no guarantee shall be made after September 30, 1986.
(2) The full faith and credit of the United States Is pledged to the
payment, under paragraph (5), of any default on any Indebtedness
guaranteed under subsection (d) (2) of this section. Any such guarantee
made by the Secretary shall be conclusive evidence of the eligibility of
the obligation Involved for such guarantee, and the validity of any such
guarantee so made shall be Incontestable in the hands of a holder of
the guaranteed obligation, except for fraud or material misrepresenta-
tion on the part of the holder, or known to the holder at the time ac-
quired.
(3) The Secretary shall prescribe and collect fees in connection with
guarantees made under subsection (d) (2) of this section. These fees
may not exceed the amount which the Secretary estimates to be necessary
to cover the administrative costs pertaining to such guarantees.
(4) The interest paid on any obligation which Is guaranteed under
subsection (d)(2) of this section and which Is received by the purchaser
thereof (or the purchaser's successor in Interest), shall be included in
gross income for the purpose of chapter 1 of Title 26. The Secretary
may pay out of the Fund to the coastal state or the unit of general
purpose local government issuing such obligations not more than
such portion of the interest on such obligations'as exceeds the amount
of Interest that would be due at a comparable rate determined for loans
made under subsection (d) (1) of this section.

(5) (A) Payments required to be made as a result of any gtiarantee
made under subsection (d)(2) of this section shall be made by the
Secretary from sums appropriated to the Fund or from* moneys ob-
tained from the Secretary of the Treasury pursuant to paragralih (6).
(B) If there is a default by a coastal state or unit of general purpose
local government in any payment of principal or interest due under a
bond or other evidence of indebtedness guaranteed by the Secretary
under subsection (d)(2) of this section, any holder of such' bond or
other evidence of indebtedness may demand payment by the Seiretary of
the unpaid interest on and the unpaid principal of such obligation as
they become due. The Secretary, after investigating the facts 'pieented
by the holder, shall pay to the holder the amount which is due such
holder, unless the Secretary finds that there was no defaul4' by such
state or unit or that such default'has 'been remedied.
(C) If thei Secretary makes a payment to a holder under subpara-
graph (B), the Secretary shall-
(i) have all of the rights granted to the Secretary orthe -United
States by law or by agreement with the obligor; and
(i) be subrogated to all of the rights which were granted such
holder, by law, assignment, or security agreement between such
holder and the obligor.
Such rights shall include, but not be limited to, a right of reimburse-
ment to the United States against the coastal state or unit of general
purpose local government for which the payment was made for the
amount of such payment plus interest at the prevailing current rate as
determined by the Secretary. If such coastal state, or the coastal state
in which such unit is located, is due to receive any amount under sub-
section (b) of this section, the Seeretary shall, in lieu of paying such
amount to such state, deposit such amount in the Fund until such right
of reimbursement has been satisfied. The Secretary may accept, in
complete or partial satisfaction of any such rights, a conveyance of'
property or interests therein. Any property so obtained by the Secre-
tary may be completed, maintain6d, operated, held, rented, sold, or
otherwise dealt with or disposed of on.such terms or conditions as the
Secretary prescribes or approves. If, in any case, the sum received
through the sale of such property is greater than the amount paid to
the holder under subparagraph (D) plus costs, the Secretary shall pay
any such excess to the obligor.
(D) The Attorney General shall, upon thie request of the Secretary,
take such action as may' be appropriate to enforce any right accruing
to the Secretary or the United States as a result of the making of any
guarantee under subsection (d)(2) of this section. Any sums receivedl
through any sale under subparagraph (C) or recovered pursuant to
this subparagraph shall be paid Into the Fund.
(6) If the moneys available to the Secretary are not. sufficient to
pay any amount which the Secretary is obligated to Day under paragraph
(5), the Secretary shall issue to the Secretary of the Treasury notes
or other obligations (only to such extent and in such amounts as may
be provided for in appropriation Acts) in such forms and denominations,
bearing such maturities, and subject to such terms and conditions as
the Secretary of the Treasury prescribes. Such notes or other obligations
shall bear interest at a rate determined by the Secretary of the Treasury
on the basis of the current average market yield on outstanding market-
able obligations of the United States on comparable maturities during
the month preceding the issuance of such notes or other obligations.
Any sums received by the Secretary through such issuance shall be
deposited in the Fund. The Secretary of the Treasury shall purchase any
notes or other obligations issued under this paragraph, and for this
purpose such Secretary may use as a public debt transaction the pro-
ceeds from the sale of any securities issued under the Second Liberty
Bond Act, as now or hereafter in force. The purposes for which securi-
ties may be issued under that Act are extended to include any purchase
of notes or other obligations issued under this paragraph. The Secre-
tary of the Treasury may at any time sell any of the notes or other
obligations so acquired under this paragraph. All redemptions, pur-
chases, and sales of such notes or other obligations by the Secretary
of the Treasury shall be treated as public debt transactions of the
United States,

DLUibmtty reo:Irement.l appotLloment of assitaac '
(g) (1) No coastal state Is eligible to receive any financial assistance
under this section unless such state- '
(A) has a management program which has been approved under
section 14665 f this title;
(B) is receiving a grant under section 1454(c) or (d) of this
title; or
(C) Is, In the judgment of the Secretary, making satisfactory
progress toward the development of a management program which
Is consistent with the policies set forth in section 1452 of this title.

226

(2) Each coastal state shall, to the maximum extent practicable,
provide that financial assistance provided under this section be appor-
W tioned, allocated, ard granted to units of local government within such
state on a basis which is proportional to the extent to which such units
need such assistance.

Ceoutal Eaeray Impact Pand; estabilshuent
(h) There is established in the Treasury of the United States the
Coastal Energy Impact Fund. The Fund shall be available to the Sec-
retary without fiscal year limitation as a revolving fund for the purposes
of carrying out subsections (c) and (d) of this section. The Fund shall
consist of-
(1) any sums appropriated to the Fund;
(2) payments of principal and interest received under any loan
made under subsection (d) (1) of this section;
(3) any fees received in connection with any guarantee made
under subsection (d) (2) of this section; and
(4) any recoveries and receipts under security, subrogation, and
other rights and authorities described in subsection (f) of this sec-
tion.
All payments made by the Secretary to carry out the provisions of sub-
sections (c), (d), and (f) of this section (including reimbursements to
other Government accounts) shall be paid from the Fund, only to the
extent provided for in appropriation Acts. Sums in the Fund which
are not currently needed for the purposes of subsections (c), (d), and
(f) of this section shall be kept on deposit or invested in obligations of.
or guaranteed by, the United States..

Land use or water ure deeluionas Intercealon of Secretary prohibited
(i) The Secretary shall not intercede in any land use or water use
decision of any coastal state with respect to the siting of any energy
facility or public facility by making siting In a particular location a pre-
requisite to, or a condition of, financial assistance under this section.

IReport to Congrenss evalzationa
(J) The Secretary may evaluate, and report to the Congress, on the
efforts. of the coastal states and units of local government therein to
reduce or ameliorate adverse consequences resulting from coastal energy
activity and on the extent to which such efforts involve adequate con-
sideration of alternative sites.

Basil of Seeretartx administration of financial asirltance
(k) To the extent that Federal funds are available under, or pursu-
ant to, any other law with respect to-
(1) study and planning for which financial assistance may be
provided under subsection (b) (4) (B) and (c) of this section, or
(2) public facilities and public services for which financial as-
sistance may be provided under subsection (b)(4)(B) and (d) of
this section,
the Secretary shall, to the 'xtent piretlcabhe, administer 'iueiih[c-
tlons- ,. , , ; V
(A) on the basis that the finaicial assistance shall beioi-dj4ltidn
to, and not in lieu of, any Federal funds 4whichl any coasitl 'state
or unit of :general purpose local :'oerament may blaJ i t''nder
.anyPotherlsw, Pa._
--) to avoid duplcation. i'" . . ', e ; ' .
; . . ; X !tlenu i fCa.ltu ?
(J) .As used in this section-
(1) The, term "retirement"; when used with respect .ti bonds,
means the redemption in full and the withdrawal from circulation
of �tose which' Cannbt .be repaid by the'issulng jtrilsditioa4_in ac-
cordance with the' apropriaterepayment schedule. -
(2) The term "unavoidable", when used with respect t'o a"loss
of any valuable environmental or recreational resource,. me.ua a
loss, in whole or in part- -
(A) the costs of prevention, reduction, or amelioratibn of
which cannot be directly or indirectly attributed to, or assessed
against, any Identifiable person; and
(B) cannot be paid for with funds which are available un-
der, or pursuant to, any provision of Federal law other than
this section.
(3) The term "unit of general purpose local government" means
any political subdivision of any coastal state or any special entity
created by such a state or subdivision which (in whole or part)
is located in, or has authority over, such state's coastal zone, and
which (A) has authority to levy taxes or establish and collect lieer
fees, and (B) provides any public facility or public service which
Is financed in whole orpart by taxes or user fees.

227

� 1456b. Interstate grants-Priorities; limits on grants
(a) The coastal states are encouraged to give high priority-
(1) to coordinating state coastal zone planning, policies, and
programs with respect to contiguous areas of such states; and
(2) to studying, planning, and implementing unified costal
zone policies with respect to such areas.
Such coordination', study, planning, and implementation may be con-
ducted pursuant to interstate agreements or compacts. The Secretary
may make grants annually, in amounts not to exceed 90 per centum of
the cost of such coordination, study, planning, or implementation, if
the Secretary finds that the proceeds of such grants will be used for
purposes consistent with sections 1464 and 1455 of this title, :
Agreementa or eompaects
(b) The consent of the Congress is hereby given to two or" more
coastal states to negotiate, and to enter into, agreements or compacts,
which do not conflict with any law or treaty of the United States, for-
(1) developing and administering coordinated coastal zone plan-
ning, policies, and programs pursuant to sections 1454 and 1455 of
this title; and
(2) establishing executive instrumentalities or agencies which
such states deem desirable for the effective implementation of such
agreements or compacts.
Such agreements or compacts shall be binding and obligatory upon any
state or party thereto without further approved 1 by the Congress.
Federal-State consultatlon procedure
(c) Each executive instrumentality or agency which is established
by an interstate agreement or compact pursuant to this section is en-
couraged4 to adopt a Federal-State consultation procedure for, the dlentif l-
cation. examination, and cooperative resolution of mutual problemri4.ith
respeat. to the marine and coastal ares, which affect, dilrectly or Jldlreealy,
the applIcable conatotl zone, 'The Secretaiiy, the Secretqry of tkhe lnerior,
the Qhairman"p't, the 'JQuZncll on Environmental Qu�ltity, the o AmliIstra-
tor of 'thi' Gvaifirnmenta l' rtection Agency, tie' Secreta 6yf,'i tfie de-
partment in which the Coast Guard is..operatln's, 'ad' the AdmiiFitrttor
of the Federal 'Energy Administration, or their' designated aep'resenta-
tives, shall participate ex offilct-'o. bhalf of the Federal Govemr nent
whenever any such Federal-State consultation' is requested by-'ruts an
instrumentality or'agency. . '
( mpeorar planitng and coordinating entityl limits on ant '
'"(d) If no applicable interstate agreement or compact exists,.the Secre-
tary may coordinate coastal'zone activities described in subscation (a)
of this section aid may make grants to assis't any group of two or more
coastal states to 'create and maintain a' temporary planning and, coordi-
nating entity to--
(1) coordinate state coastal zone planning, policies, and pro-
grams with respect to contiguous areas of the states involved;.
(2). study, plan, and implement unified coastal zone policies with
respect to such areas; and
(3) establish an effective mechanism, and adopt a Federal-State
consultation procedure, for the identification, examination, and co-
operative resolution of mutual problems with respect to the marine
and coastal areas which affect, directly or indirectly, the applicable
coastal zone.
The amount of such grants shall not exceed 90 per centum of the cost
of creating and maintaining such an entity. The Federal officials speci-
fied in subsection (c) of this section, or their designated representatives,
shall participate on behalf of the Federal Government, upon the request
of any such temporary planning and coordinating entity.
� 14f56c. Research and-technical assistance for coastal zone manage-
ment-Programs supporting development and implementation conducted
by Secretary; assistance of executive branch; contracts or other ar-
rangements
(a) The Secretary' may conduct a program of research, study, and
training to support the development and implementation of manage-
ment programs. 'Each department, agency, and instrumentality of the
executive branch of the Federal Government may assist the Secretary,
on a reimbursable basis or otherwise, in carrying out the purposes' of
this section, including, but not limited to, the furnishing of intormation
to the extent permitted by law, the transfer of personnel with their
consent and without prejudice to their position and rating, and the
performance of any research, study, and training which does not inter-
fere with the performance of the primary duties of such departknent,
agency, or instrumentality. The Secretary may enter into contracts or
other arrangements with any qualified person for the purposes of carry-
Ing out this subsection.

228

Grante; lmits.
(b) The Secretary may make. grants to coastal states to assist such
states in carrying out research, studies, and training required with
respect to coastal zone management. The amount of any grant made
under this subsection shall not exceed 80 per centum of the cost of such
research, studies, and training.
Coordination with other actlviltie availabilIty of revanlt
(c) (1) The Secretary shall provide for the coordination of research.
studies, and training activities under this section with any other such
activities that are conducted by, or subject to the authority of, the Secre-
tary.
*: (2) he ' Seotai ':hall make the results 'ot search eo1idu:" hiusu-
ant to this section available to any interesied'person. - � ; ;

� 1457. Public hearings
All public hearings required under this chapter must be announced
at least thirty days prior to the hearing date. At the time of the an-
nouncement, all agency materials pertinent to the hearings, including
documents, studies, and other data, must be made available to the pub-
lie for review and study. As similar materials are subsequently devel-
oped, they shall be made available to' the public as they become availa-
ble to the agency. *4$$457.. ' ma,
% .stlon S08 ot' 'ub.L "89-;i: "'- t1e III,
.as redesignated 311 bu Pubk ,4170, I

(a) The Secretary shall conduct a continuing review of--,..s
(1) the' management progra ., of thq coastal states andts per-
formnce of such .statea with respect to coastal zone management;
and ...., . - *..- '
(2) the coastal energy impact program provided for under section
1456a of this.title.
(b) The Secretary shall have the authority to terminate any finan-
cial assistance extended under section 1455 of this title and to with-
draw any unexpended portion of such assistance if (1) he determines
that the state is failing to adhere to and is not justified in deviating
* from the program approved by the Secretary; and (2) the state has
been given notice of the proposed termination and withdrawal and giv-
en an opportunity to present evidence of adherence or justification for
altering its program.
� 1459; Records and audit '
(a) Each recipient of a grant under this chapter or of financial as-
sistance under section 1456a -of this title shall keep such records as
the Secretary shall prescribe, including records which fully disclose the
amount and disposition of the funds received under the grant and of
the proceeds of such assistance, the total cost of the project or under-
taking supplied by other sources, and such other records as will facilitate
an effective audit.
(b) The Secretary and the Comptroller General of the United' States,
or any of their duly authorized representatives, shall-
(1) after any grant is made under this chapter or any financial
assistance is provided under section 1456a(d) of this title; and
(2) until the expiration of 3 years after-
(A) completion of the project, program, or other .under-
taking for which such grant was made or used, or
(B) repayment of the loan or guaranteed indebtedness for
which such financial assistance was provided,
have access for purposes of audit and examination to any record, 'book,
document, and paper which belongs to or is used or controlled by, any
recipient of the grant funds or any person who entered into any trans-
action relating to such financial assistance and which is pertinent for
purposes of determining if the grant funds or the proceeds of such finan-
cial assistance are being, Or were, used in accordance with the provisions
of this chapter.

229

� 1460. Coastal Zone Management Advisory Committee
(a) The Secretary is authorized and directed to establish a Coastal
Zone Management Advisory Committee to advise, consult with,- and
make recommendations to the Secretary on matters of policy concern-
ing the coastal zone. Such committee shall be composed of not more
than fifteen persons designated by the Secretary and shall perform
such functions and operate in such a manner as the Secretary may di-
rect. The Secretary shall insure that the committee membership as a
group possesses a broad range of experience and knowledge relating to
problems involving management, use, conservation, protection, and de-
velopment of coastal zone resources.
(b) Members of the committee who are not regular full-time em-
ployees of the United States, while serving on the business of the com-
mittee, including traveltime, may receive compensation at rates not ex-
ceeding $100 per diem; and while so serving away from their homes
or regular places of business may be allowed travel expenses, including
per diem in lieu of subsistence, as authorized by section 5703 of Title
5 for individuals in, the Government service employed intermittently.
� 1460. Coastal Zone Management Advisory Committee
Section 311 of Pub.L. 89-454 Title III,
was redesi nated 314 by Pub.L. 94-370, 1
7, July 26, 1976. 90 Stat. 1019.
� 1441. Estuarine sanctuaries, access to beaches and other coastal
areas, and preservation of islands
The Secretary may, in accordance with this section and in accordance
with such rules and regulations as the Secretary shall promulgate, make
srants to any coastal state for the purpose of-
(1) acquiring, developing, or operating estuarine sanctuaries, to
serve as natural field laboratories in which to study and gather data
o tOhe natural and human processes occurring within the estuaries
of the coastal zone; and
(2) acquiring lands to provide for access to public beaches' and
other public coastal areas of environmental, recreational, historical,
'"' esthetfc, ecological, or cultural value, and- for, the preservatlo0' of
islands -
The amount of any such grant shall not exceed 50 per centum of the
cost of' the project involved; except that, in 'the ease of acquisition of
any estuarine sanctuary, the Federal share of the cost thereof shall not
exceed $2,00 0,00.: � �
.� 1402. Annual report '
(a) The Secretary shall prepare and submit to the Presldent'i for
transmittal to the Congress not later than November 1 of each year a
report on' the administration of this chapter for the preceding fiscal
year. The report shall include but not be restricted to (1) an identifi-
cation of the state programs approved pursuant to this chapter during
the preceding Federal fiscal year and a description of those programs;
(2) a listing of the states participating in the provisions of this chapter
and a description oi the status of each state's programs and ts. .c-
complishmeats during the preceding Federal fiscal year; (3) an itemiza-
tlon of the allocation of -funds to the various coastal states and a break-
doown Of. the major projects and areas on which these funds were ex-
pended;' ((4) an identification of any state programs which hav.e been
reviewed and disapproved or with respect to which grants have, been
terminated under this chapter, and a statement of the reasons for such
action; (5) a listing of all activities and projects which, pursuant to
the provisions of subsection (c) or subsection (d) of section 1456 of
this title, are not consistent with an applicable approved state manage-
ment program; (6) a summary of the regulations issued by the Secre-
tary or in effect during the preceding Federal fiscal year; (7) a sum-
mary of a coordinated national strategy and program for the Nation's
coastal zone including identification and discussion of Federal, regional,
state, and local responsibilities and functions therein; (8) a summary
of outstanding problems arising in the administration of this chapter in
order of priority; (9) a description of the economic, environmental,
and social consequences of energy activity affecting the coastal zone and
an evaluation of the effectiveness of financial assistance under Section
1456a of this title In dealing with such consequences; (10) a descrip-
tion and evaluation of applicable interstate and regional planning' and
coordination mechanisms developed by the coastal states; (11) ,a hPum-
mary and evaluation of the research, studies, and training conducted in
support of coastal zone management; and (12) such other information
as may be appropriate.
(b) The report required by subsection (a) of this section shal1 con-
tain such recommendations for additional legislation as the Secretary
deems necessary to achieve the objectives of this chapter and enhance
its effective operation.

230

Section 2 - STATE LAW

CALIFORNIA COASTAL ACT
CAL. PUB. RES. CODE 9 30000 - 30900 (West Supp. 1976)
CHAPTER I. FINDINGS AND DECLARATIONS AND
GENERAL PROVISIONS
0000.
This division shall be known and may be cited as the California Coastal Act of
1076.
30001.
Tile Legislature hereby finds and declares:
(a) That the California coastal zone is a distinct and valuable natural resource
of vital and enduring interest to all the people and exists as a delicately balanced
ecosystem.
(b) That the permanent protection of the state's natural and scenic resources Is a
paramount concern to present and future residents of the state and nation.
(c) That to promote the public safety, health, and welfare, and to protect public
and private property, wildlife, marine fisheries, and other ocean resources, and
the natural environment, it is necessary to protect the ecological balance of tile
coastal zone and prevent its deterioration and destruction.
30001.2. - .
The Legislature further finds and declares that, notwithstanding the fact electrl-
cal generating facilities, refineries, and coastal-dependent developments, Including
ports and commercial fishing facilitles, offshore petroleum and gas developmen.,
and liquefied natural gas facllities, may have signlficant adverse effects on eoansal
resources or coastal access, It may be necessary to locate such developulents In the
coastal zone ih ordereto ensure that Inland as well as coastai resources tre preserv-
ed and that orderly economic development proceeds within the state.
30001.5.
The Legislature further finds and declares that the basic goals of the state for
the coastal zone are to:
(a) Protect, maintain, and, where feasible, enhance and restore the overall quality
of the coastal zone environment and its natural and manmade resources.
(b) Assure orderly, balanced utilization and conservation of coastal zone resources
taking into account the social and economic needs'of the people of the state.
(c) Maximize public access to and along the coast and maximize public recreation-
al opportunities in tile coastal zone consistent with sound resources conservation
principles and constitutionally protected rights of private property owners.
(d) Assure priority for coastal-dependent development over other development' on
the coast. -
(e) Encourage state and local initiatives and cooperation In preparing procedures
to Implement coordinated planning and development for mutually beneficial uses,
including edlucational uses, in the coastal zone.
30002.
The Legislature further finds and declares that:
(a) The California Coastal Zone Conservation Commission, pursuant to the Call-
fornia Coastal Zone Conservation Act of 1972 (commencing with Section 27000), has
made a detailed study of the coastal zone; that there has been extensive partlcipa-
tion by other governmental agencies, private interests, and the general public In the
study; and that, based on the study, the commission has prepared a plan for tile
orderly, long-range conservation, use, and management of the natural, scenic, cul-
tural, recreational, and manmade resources of the coastal zone.
(b) Such plan contains a series of recommendations which require Implementation
by the Legislature and that some of those recommendations are appropriate for
Immediate implementation as provided for in this division while others require ad-
ditional review.
30003.
All public agencies and all federal agencies, to the extent possible under federal
law or regulations or the United States Constitution, shall comply with the provi-
sions of this division.
30004.
The Legislature further finds and declares that:
(a) To achieve maximum responsiveness to local conditions, accountability, and
public accessibility, it is necessary to rely heavily on local government and local
land use planning procedures and enforcement.
(b) To ensure conformity with the provisions of this division, and to provide
maximum state involvement in federal activlties allowable under federal law or
regulations or the ITnited States Constitution which affect Californla's coastal re-
sourees, to protect regional, state, and national Interests in assuring the mbinte-
nance of the long-term productivity and economic vitality of coastal resources neec-
essary for the well-being of the people of the state, and to avoid long-term costs to
the publle and a diminished quality of life resulting from the misuse of coastal re-
sources, to coordinate and integrate the activities of the many agencies whose ac-

231

tivities Inpipct the Coastal zone, and to snpplement their activities In Matters Uot.
prolowly wvithinl thle jurisdiction of any existing agency, It is necessary to provide
for Continuied state, coastal planning and management through a s,1tat Coasthilc~
Iflissioll -
30005.
No provision of this division Is it limitation on any of the following:,
(a) Except as otherwiseo Inailted by state lawv, on the power of a city or countj br
city and county to adopt and enforce additlonal] regulations, not In conflict with
this act, Imposing' further conditions, restrictions, or limitations with respeOt to
ally land or water use ot' other activity which might adversely affect the resources
of the coastal zone.
(b) Onl the powver of any city or county or city and county to declare, prohibit,
and iibite nuisances.
(ci Onl the power of the Attorney General to bring an action in the name of thle
people of t:1w( state to enjoin any waste or pollution of the resources of the coastal
zone or lilly nuisance-.
(d) On the right of .any person to maintain an appropriate action for relief
agliinst a private ulisance or for any other private relief.
30006.
Tihe Legislature further finds Aind dvelares that the public has it right to fully
part~icipate ill decisions affecting Coastal planning, Conservaiiton, find (levelopmlent:
that nelioeldeonclt of souiiid Coastal Conservationi and developnient iN dependent upon
ipuIlic4 understanding siti support; mrid that thle contti 111mig I 11111 ii g and ninplemeoii-
tation of programs for coastult coniservation and development should Include fit(
widest opportunity for public participation.
30007.
Notiling !in this division shall exemipt local governmenlts fromt iteeting tile re-
quireenwits of state and federal law with respect to providing low- and mioderate-
inconme housing, replacemlent Ilousing, relocation benefits, or any other Obligation
related to housing imiposed by existing law or any law hereafter enaclted.
30007.5.
Thle Legislature further finds and recognizes that conflicts many occur between
one or mo1re policies of the divisioll. The Legislatuire therefore (leclares that In ciir-
rying out the, provisions of this division sluch conflicts bo resolved In a manner
Which onl batlanuce is. the most protective of significant coastal resources. In this
context, the Legislature declares, that broader policies which, for (Exaniple,, serve t.o
COncentralte d(lev(1oJnlent in Close proximity to urbaul and emnploynivelt centers many
he moore lirot(ctvelv, overall, thain specific wildlife hlabitat and other similar resource
policies. ______
30008-
This Wigtson, shiall constitute California's coastal zone management progrvon
within thle coastal zone~ for purposes of the Federal Coastal Zone MaMMAgemt
Act Of 1972 (16,1U.S.C. 1451, et seq.) and any other federal act heretofow;~orvhere..
after enacted or amended that relates to the planninlg or management. of .0asta1
gone resources; provided, however, that pursuant to the Federal COaSta2 Zone
Management Act of 1972, excluded from coastal zone are -lands the use of which
is by law sibject solely to the discretion of or which is held In trut-, by the
jederal government, its officers or agents,.

30009.
This divison sliktil be liberally Construed to accomplish its 13mi'POSes and objec-
tives.

i00I O.
Thle Legislature hereby finds and declares that this division la not intended,
and shall not be Construed as4 authborizing the rgoa omsin h omS
sioni, port goverinlilg body, or local govprilnenet acting pursuant to this dIVISIOn1
to exercise ilicir power to grant or denly a permit in a manner which will take'
or (lamaige, private property for public us(., without the paymlent of Just coal-
penqatiohi thei'efor. This .section Is not intended to increase or decrease thle
rights; of any owner of property tinder the Constitution of tile Statte of Ciffifornia
or tile United States.__________

CHAPTER 2. DEFINITIONS

30100.
Unless tile context otherwise requires, thle definitions In this cilapter govern the
Interpretation of this division.
30100.5. 1Tei hlorI
-Coastaul coulnty"l mansus a 'County or city and county whichienwolorn
patrt, within the coastal zone.___
4..

Changes or additionse in text are indicated by underline

deletions by asterisks **

232

30101.
"Coastal-dependent development or use" means any development o'.use which
requires a site on,.or adjacent to, the sea to be able to function at all. .
30101.5. ' , , ' . ,
"Coastal development permit" means a permit for any developmentvwithin the
coastal zone that ilsrequired pursuant to subdivision (a) of Section 860.'
30102.,
"Coastal plan" mieans the California Coastal Zone Conservation Plan prepared and
adopted by the California Coastal Zone Conservation Commission and submitted to
the Governor and the Legislature on December 1, 1975, pursuant to the California
Coastal Zone Conservation Act of 1;972 (commencing with Section 27000).
30103. ,.t-- . .,
(a) "Coastal zone" means that land and water area of the State od.Valifornia
from the Oregon border to the border of the Republic of Mexico, specified on the
maps identified and set forth in Section 17 of that chapter of the Statutes of the
1975-76 Regular Session enacting this division, extending seaward to the state's
outer limit of jurisdiction, including all offshore islands, and extending inland geln-
erally 1,000 yards from the mean high tide line of the sea. In significant coastal
estuarine, habitat, and recreational areas it extends inland to the first major ridge-
line paralleling the sea or five miles from the mean high tide line of the sea, wlhch-
ever is less, and in (leveloped urban areas the zone generally extends inland less
than 2,000 yards. The coastal zone does not include the area of jurisdiction of the
Sai Francisco Bay Conservation and Development Commission, established pursu-
ant to Title 7.2 (commencing with Section 66600) of the Government Code, nor alny
area contiguous thereto, including any river, stream, tributary, creek, or flood coil-
trol or drainage channel flowing Into such area.
(h) The commission shall, within 60 days after its first meetingi; prepare and
adopt a detailed map, on a scale of one inch equals 24,000 inches for the coastal zoine
and shall file a copy of such map with the county clerk of each coastal county.
The purpose of this provision is to provide greater detail than Is provided by the
maps itdentifled in Section 17 of that chapter of the Statutes of the 1975-76 Regular
Session enacting this division. The commission may adjust the inland boundary of
the coastal zone the minimnum landward distance necessary, but in no event more
than 100 yards, to avoid bisecting any single lot or parcel or to conform It to readily
identifiable natural or manmade features.

30105.
(a) "Coumnission" means the California Coastal (Commission. Whenever the term
California Coastal Zone Conservation Commission appears in any law, It means the
California Coastal Commission.
(b) "Regional commission" means any regional coastal commission. Whenever
the term regional coastal zone conservation commission appears in any law, it means
the regional coastal commission.

30106.
"Development" means, on land, in or under water, the placement or erection of
any solid material or structume; discharge or disposal of any dredged material
or of any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, main-
Ing, or extraction of any materials; change in the density or intensity of use of
land, Including, but not limited to, subdivision pursuant to the Subdivision Map
Act (commencing with Section '66410 of the Government Code), and any, other divi-
sion of land, including lot splits, except where the land division is broughit about In
connection with the purchase of such land by a public agency for public recreational
use; change in the intensity of use of water, or of aicess thereto; coxestrletion, re-
construction, demolition, or alteration of the size of any structure, Including any
facility of any private, public, or municipal utility; and the removal or harvesting
of major vegetation other than for agricultural purposes, kelp harvesting, and tim-
ber operations which are in accordance with a timber harvesting plan submitted
pursuant to the provisions of the Z'berg-Nejedly Forest Practice Act. ot,1973 (cornm-
nmencing with Section'4611). :-. : . ; " ' :
As used in thls"sectlon, ' struetnre" Inedudes; but is not limited 'to, any building,
road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power
transmission and distglbutio line. :,- , ; ., t ;- . , . l, ! ,t:
30107. �1 : . , , : 'P . - . ' ' 1.
"Energy facility" means any public or private processing, producetliIgeneratlng,
;storing, transmitting, or recoVering facility for electricity, natural gas, petroleum,
,coal, or other source of,energy. ... � . ': . _. ,r
30107.5 '
"Environmentally sensitive area" means any area in whieh. p1ntl' mal life
or their habitats are either rare or especially valuable because of tli;ir special
nature or role in an ecosystem and which could be easily disturbed or degraded
by human activities and developments.

233

30108. '
"Feasible" means capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, social;-and
technological factors.
30108.2.
"Fill" Inmeans earth or any other'substance or material, ilicluding pilings placed
for the purposes of erecting structures thereon, placed In a submerged area.

30108.4.
"Implementing actions" means the ordinances, regulations, or programs which
implement either the provisions of the certified local coastal program or the poli-
cles of this division and which are submitted pursuant to Section 30502.
30108.5
"Land use plan" means the relevant portions of a local government's general
plan, or local coastal element whicl are sufficiently detailed to Indicate the kinds,
location, and intensity of land uses, the applicable resource protection and develop-
ment Dolicles and, where necessary, a listing of implementing actions.
30108.55
"Local coastal element" is that portion of a general plan applicable to the coastal
zone which may be prepared by local government pursuant to this division, or
such 'additional elements of the local government's general plan prepared pur-
suant to subdivision (k) of Section 65303 of the Government Code, as such .local
government deems appropriate.
30108.6.
"Local coastal program" means a local government's land use plans, zoning ordi-
nances, zoning district maps, and implementing actions whilch, wlhen taken together,
meet tile requirements of, and implement the provisions and policies of, this divi-
sion at tile local level.
30109.
"Local government" means any chartered or general law city, chartered or gen-
eral law county, or any city and county.

So l I, ' * - age ,. . v, .! ` i '��� . , 3 l
"Permit" means any license, certificate,! approval,- or other. entitlement for use
granted or. denied by. any public agency which is subject to the provisions 'o ;his
division. . . "- '.-.'-,' �
30I.1 i i 4. :1. 'a ' ' i
"Person" means any Individual, organization, partnership, or other buslnesawas-
sociation or corppration, lncluding any utility, and any federal, state,: local.-iern-
ment, or special district or an agency thereof. '� : ' " i-,":..
30112.
"Port governing body" means the Board of Harbor Commissloners or b"old 'of
Port Commissioners which has authority over the Ports of Hueneme, Long :'ach,
Los Angeles, and San Diego Unified Port District. ,e -
30113. . ! '
"Prime agricultural land" means those lands defined in Section 51201 6fli.tGov-
ernment Code. i: i''
30i'l 4. " " - - .;- . .
"Public works" means the following:
(a) All production, storage, transmission, and recovery facilities for wateri; ew-
erage, telephone, and other similar utilities owned or operated by any public agency
or by any utility subject to the jurisdiction of the Public Utilities Commission, ex-
cept for energy facilities.
(b) All public transportation facilities, including streets, roads, highways, public
parking lots and structures, ports, harbors, airports, railroads, and mass transit
facilities and stations, bridges, trolley wires, and other related facilities. For pur-
poses of this division, neither the Ports of Hueneme, Long Beach, Los Angeles, nor
San Diego Unified Port District nor any of the developments within these ports
shall be considered public works.
(c) All publicly financed recreational facilities and any development by a special
district.
(d) All community college facilities.

234

30115 .
"Sea" means the Pacific Ocean and all harbors, bays, channels, estuaries, allt
marshes, sloughs, and other areas subject to tidal action through any coniection
with the Pacific Ocean, excluding nonestuarine rivers, streams, tributaries, creeks,
and flood control and drainage channmels. "Sea" does not include the area of ju-
risdiction of the San Francisco Bay Conservation and Development Commission,
established pursuant to Title 7.2 (commencing with Section COO00) of the Govern-

ment Code, including any river, stream, tributary, creek, or flood control or
drainage channel flowing directly or indirectly into such area.
30116.
"Sensitive coastal resource areas" means those identifiable and geographically
bounded land and water areas within the coastal zone of vital interest and sensi-
tivity. "Sensitive coastal resource areas" include the following:
(a) Special marine and land habitat areas, wetlands, lagoons, and estuaries as
mapped and designated in Part 4 of the coastal plan.
(b) Areas possessing significant recreational value.
(c) Highly scenic areas.
(d) Archaeological sites referenced in the California Coastline and Recreation
Plan or as designated by the State Historic Preservation Officer.
(e) Special communities or neighborhoods which are significant visitor destination
areas.
(f) Areas that provide existing coastal housing or recreational opportunities for
low- and moderate-income persons.
(g) Areas where divisions of land could substantially impair or restrict coastal
access.
30118.
"Special district" means any public agency, other than a local government as de-
fined in this chapter, formed pursuant to general law or special act for.the local
performance of governmental or proprietary functions within limited boundarWl.
"Special district" includes, but is not limited-to,.a county service area,:arnalnte.
nnnce district or area, an improvement district or: improvement zone, or:a4l0:other
zone or area, formed for the purpose of designating an area within whliIS; rp-.
erty tax rate will be levied to pay for a' service or improvement benefiting thait ,are.
30118.5.: � ..i:- . , , '.*',
!'Special treatment -area" means an identifiable and geographically bounded for-
ested area within the coastal zone that constitute a significant habitat area; area of
special scenic significance, and any land where logging activities could adversely ef-
fect public recreationi area or the biological productivity of any wetland, estuary, or
stream especilally valuable because of its role in a coastal ecosystem.
30119. :
"State university or college" means the University of California and 6hiecail-
fornia State University and Colleges. ,
30120. ' : '
"Treatment works" shall have the same meaning as set forth in the Federal Water
Pollution Control Act (33 U.S.C. 1251, et seq.) and any other federal act which
amends or supplements the Federal Water Pollution Control Act.
30121.
"Wetland" means lands within the coastal zone which may be covered Periodical-
ly or permanently with shallow water and include saltwater marshes, freshwater
marshes, open or closed brackish water marshes, swamps, mudflats, and fens.

CHAPTER 3. COASTAL RESOURCES PLANNING
AND MANAGEMENT POLICIES
ARTICLE 1. GENERAL
30200.
Consistent with the basic goals set forth in Section 30001.5, and except as may be
otherwise specifically provided in this division, the policies of this chapter shall con-
stitute the standards Iby which the adequacy of local coastal programs, as provided
in Chapter 0 (commencing with Section 30)500), and, the permissibillty of proposed
developllments subject to the provisions of this division are determined. All public
agencies carrying out or supporting activities outside the coastal zone that could
have a direct impact on resources within the coastal zone shall consider the effect
of such actions on coastal zone resources in order to assure that these policies are
achieved.

235

ARTICLE 2. PUBLIC ACCESS
30210. :
In carrying out the requirement of Section 2 of Article XV of the California Con-
stitution, maximum access, which shall be conspicuously posted, and recreational
opportunities shall be provided for all the people consistent with public safety
needs and thecc need to protect public rights, rights of private property owners, and
natural resource areas from overuse.
0211..; ; . iii. J . 1 a; . j .; |;
Development'shall not interfere with the'pbllc'es right of access t6't!"sea
where acquired through use' -*i * + or legislative 'authorizatenion inctdlng,
but not limited to, the use of dry sand and rocky coastal beaches to the filis'llne
of terrestrial vegetation. . .. *"
30212.
Public access from .the nearest publirc 'oadway to the shoreline and along thle
coast shall le provided in new development projects except vwhere (1) it is incon-
sistent with public safety, military security needs, or the protection of fragile
coastal resources, (2) adequate access exists nearby, or (3) agriculture would be ad-
versel affected. Dedicated accessway shall not be required to be opened to public
use until a public agenneF Qr -private association: agrees ;to accept responibilty,. for
malntenaltce. atdlahidllyty. Q.tlle:ccewayc *- '-., ., -, . .. . , " ta A:o v
Nothing in this division'sshall: restrict public, access nor shall it excusee the:per-
formmnce of duties "'and ,responsibllltie-Lof public ,agencies which arertequhled by
Sections 664781' to B4T78,14,: inclusive; of ,the Governient, Code and by'r8eEti 2 of
Article XV of the0l0fornia ..ontltutio..l .; ::�-', ': ! - '
30212.5. ' -- . : ' � :;
Wherever appropriate 'nrid feasible,: public facilities, including parking ~at'as- or
facilities,, shall be: distributed throughout an area-so as to mitigate againtthe Im-
pacts, social and otherwise, of overcrowding or overuse by the public' of 'ant Single
area. . . .: .
30213.
Lower cost visitor an'd recreational facilitles and housing opportunities 'for per-
sons of low and moderatel Income shall be protected, encouraged, and, where'feasi-
ble; provided. Developments providing public recreational opportunities are prefer-
red. New housing in the coastal zone shall be developed'in- eonformity' with the
standards, policies, and goals of local housing elements adopted in accordance with
the requirements of subdivision'(c) of Section q5302 of the Government Code.

ARTICLE 3. REOREATION
30220.
Coastal areas suited for water-oriented recreational activities that cannot readily
be provided at inland water areas shall be protected for such uses.
30221.
Oceanfront land suitable for recreational use shall be protected for recreational
use and development unless present and forseeable future demand for public or
commercial recreational activities that could be accommodated on the property is
already adequately provided for in the area. '
30222.
The use of private lands suitable for visitor-serving commercial recreational fa-
eilities designed to enhance public opportunities for coastal recreation shall have
priority over private residential, general industrial, or general commercial develop-
mlent, but not over agriculture or coastal-dependent industry.
30223.
Upland areas necessary to support coastal recreational uses shall be reserved for
such uses, where feasible.
30224.
Increased recreational boating use of coastal waters shall be encouraged, in ac-
cordance with this division, by developing dry storage areas, increasing public
launching facilities, providing additional berthing space in existing harbors, limiting
non-water-dependent land uses that congest access corridors and precludeboating
support facilities, providing harbors of refuge, and by providing for new boating
facilities in natural harbors, new protected water areas, and in areas dredged- from
dry land. i . '

ARTICLE 4. MARINE ENVIRONMENT '
30230. : . ,
Marine resources shall be maintained, enhanced, and, where feasible, restored.
Special proteeltion shall be given to areas and species of special biological'Or eco-
nomic sigulficance. Uses of the marine environment shall be carried out in a man-
ner that will sustain the biological productivity of coastal waters and that will
maintain healthy populations of all species of marine organisms adequate for
long-term commercial, recreational, scientific, and educational purposes..'
30231. ,F-
The biological productivity and the quality of coastal waters, streams, wetlands,
estuaries, and lakes appropriate to maintain optimum populations of marine or-

236

ganisnis and for the protection of human health 'Bliall be maintained alidBWlG,
feasible, restored through, among other means, minimizinrg adverse effect'oi3wati
water discharges :and entrainment, controllingi runoff, preventing depbltlol: f
ground water supplies and substantial-interference with surface water flert;
couraging waste- water' reclamation, maintaining natural vegetation bugff"i,,Jaj
that protect riparian habitats, and minimizing alteration of natural streams ,
30232.
Protection against the spllUage of crude oil, gas, petroleum products,, qrl.azgWrd.
ous substances shall be provided in relation to any development or transpwrtation
of such materials, Effective containment and cleanup facilities and procedures.hagll
be provided for accidental spills that do occur.
30233.
(a) The diking, filling, or, dredging of open coastal waters, wetlands, estuaries,
and lakes shall be permitted in. accordance with other applicable provisions of this
division, where there is no feasible less environmentally damaging alternative, and
where feasible.mitigation measures have been provided to mnillmize adverse envir-
onmental effects, and shall be limited to the following:
(1) New or expanded port, energy, and coastal-dependent industrial facilities, in-
cluding commercial fishing facilities.
(2) Maintaining existing, or restoring previously dredged, depths in existing navi-
gational channels, turning basins, vessel berthing and mooring areas, and boat
launching ramps.
(3) In wetland areas only, entrance channels for new or expanded boating facill-
ties; and in a degraded wetland, identified by the Department of Fish and Game
pursuant to subdivision (b) of Section 30411, for boating facilities if, in conjunction
with such boating facilities, a substantial portion of the degraded wetland is restor-
ed and maintained as a biologically productive wetland; provided, however, that
in no event shall the size of the wetland area used for such boating facility, Includ-
ing berthing space, turning basins, necessary navigation channels, and any necessary
support service facilities, be greater than 25 percent of the total wetland area to be
restored.
(4) In open coastal waters, other than wetlands, including streams, estuaries, and
lakes, new or expanded boating facilities.
(5) Incidental public service purposes, including, but not limited to, burying cables
and pipes or inspection of piers and maintenance of existing intake and outfall
lines.
(6) Mineral extraction, including sand for restoring !aclles, except In envirol-
mentally sensitive areas.
(7) Restoration purposes.
(8) Nature study, aquaculture, or similar resource-dependent activities,
(b) Dredging and spoils disposal shall be planned and carried out to avoid signifi-
cant disruption to marine and wildlife habitats and water circulation. Dredge
spoils suitable for beach replenishment should be transported for such purposes to
appropriate beaches or into suitable longshore current systems.
(c) In addition to the other provisions of this section, diking, filling, or dredging
in existing estuaries and wetlands shall maintain or enhance the functional capacity
of the wetland or estuary. Any alteration of coastal wetlands identified by ithe
Department of Fish and Game, including, but not limited to, the 19 coastal wetlands
Identified in its report entitled, "Acquisition Priorities for the Coastal Wetlands of
California", shall be limited to very minor incidental public facilities, restorative(
measures, nature study, commercial fishinfg facilities in Bodega Bay, and develop-
mnet in already developed parts of south San Diego Bay, if otherwise in accord-
ance with this division.
30234.
Facilities serving the commercial fishing and recreational boating industries shall
be protected and, where feasible, upgraded. Existing commercial fishing and rec-
reational boating harbor space shall not be reduced-,nnless the demand forT.ghose
facilities no longer exists or adequate substitute space has been provided, PSopoped
recreational boating facilities shall, where feasible, be designed and located in suIch
it fashion as not to interfere with the needs of the commercial fishing .idutpTy.
30235. : -I: .. . : *: .. * i,
Revetments, breakwaters, groins, harbor channels, seawalls, cliff retalng walls,
and other such construction that alters natural shoreline processes shall, heperm It-
ted when required to serve coastal-dependent uses or to protect existing structures
or public beaches in danger from erosion and when designed to eliminate or' miti-
gate adverse impacts on local shoreline sand supply. Existing marine structures
causing water stagnation contributing to pollution problems and flshkills should
be phased out or upgraded where feasible.
30236. - .
Channelizations, dams, or other substantial alterations of rivers and streams shall
incorporate the best mitigation measures feasible, and be limited'to (l).necesisary
water supply projects, (2) flood control projects where no other method for prot(tt-
ing etxisting structures in the flood plain is feasible and where such protection is
necessary for public safety or io protect existing develop,if'nt, or (3) developments
where the primary function Is the improvement of fish and wildlife habitat.

237

ARTICLE 5. LAND RESOURCES
30240.
(a) Eluvironlilentally sensitive habitat areas shall be protected against any signi-
ficant disruption of habitat values, and only uses dependent on such resouces shall
be allowed within such areas.
(b) D)evelopment in areas adjacent to environmentally sensitive habitat areas
and parks and recreation areas shall be sited and designed to prevent Impacts
which would significantly degrade such areas, and shall be compatible with the
'ontillance of such habitat areas.
30241.
The maximum amount of prime agricultural land shall be maintained In agricul-
tural production to assure the protection of the areas' agricultural economy, and
conflicts shall be minimized between agricultural and urban land uses through all of
the following:
(a) By establishing stable boundaries separating urban and rural areas, including,
wbere necessary, clearly defined buffer areas to minimize conflicts between agricul-
tural and urban land uses.
(lI) By limiting conversions of agricultulral lands around the periphery of urban
areals I thlle lands where thle viability of existing agric.ultural use is already severe-
ly limited by conflicts with urban uses arid where the conversion of the lands would
complete a logical and viable neighborhood and contribute to the establishment of a
stable limit to urban development.
(c) By developing availible lands not suited for agriculture prior to the'conver-
sion of agricultural lands.
(d) By assuring that public service and faeility expansions and nonagricultural
development do not impair agricultural viability, either through increased assess-
ment costs or degraded air and water quality.
(e) By assuring that all divisions of prime agriculutral lands, except those con-
versions approved pursuant to subdivision (b) of this section, and all development
adjaent to prime agricultural lands shalll not diminish the productivity of such
prime agricultural lands.
30242.
All other lands suitable for agricultural use sihall not be convcrted to nonagricul-
tural uses unless (1) continued or renewed agricultural use is not feasible, or (2)
such conversion would preserve prime agricultural land or concentrate development
'consistent with Section 30250. Any such permitted conversion shall be c6miroitible
with continuid agricultural use on surrounding lands.: "L .

The long-term proluctivity of soils and timberlands shall be protected, Rntd on-
versions of coastal commercial timberlands in units of commercial size to othek:iises
or their division into units of noncommercial size shall be limited to provfding.for
necessary timber processing and related facilities.
30244.
Where development would adversely impact achaeological or paleontologl ' re-
sources as identified by the State Hlistoric Preservation Officer, reasonable mitiga-
tion measures shall be required.

ARTICLE 6. I)EVELOPMENT ," -::
30250.
(a) New development, except as otherwise provided in this division, shall ha
locate(d within, contiguols with, or in close proximity to, existing developed arevas
able I) accommodate it or, wheret such :1areas are not able to aecomlmodate it, in
other dareas with adeqiuate public services and where it will not have signiflecant
/adverse effects, either individually or cumulatively, on coastal resources. In addl
tion, land divisions, other than leases for agricultural nuses, outside existing de-
veloped areas shall be permitted only where r50 percent of tihe usable parcels III
the area have been developed and the created par'cels wonld be no sinaller thall
the average size of surrounding parcels.
(1) Where feasible, new hazardous industrial development shall he(? located awlay
from existing developed areas.
(c) Visitor-serving facilities that eantllot feasibly lie locatedl in existinig develoll'd
areas shall Ibe located in existing isolated deveolopments or iat selected points of
attraction for visitors. . _.
30251.
'l'' senYIIc anld visuaIl qualities of coastal areas shall bex considered and protected
Its resource! of piblice Importanee, Permiltted developlnallt shall he sited and (i'e-
signed to protect views to and along ilthe ocean alld scenil coastal areas, tO minimize
the alter:ltio of natural land forms, to be visually compatible with the charatler
of surrounding areas, and, where feasible, to restore and enhance, visual quality In
visually degraded areas. New development in highly scenic areas sutich as thoHe
designated In the Califoria Coastline Preservation and Recreation Plan prepared
by the Department of Parks and Rlecreation and by local government shall be sulb-
ordinate to tile character of its setting.

238

ganisms and :for the protectiono!f human health slhall be maintained amidW, Ali
feasible, restored through, among other means, minimiziig adverse effoctd3ePtoiv*
water discharges ;and entrainment, controlling runoff, preventing deptjtl;tz ft
ground water supplies and substantial interference with surface water nf*i,
couraging wAste water reclamation, maintaining natural vegetation buffTAtpea
that protect riparian habitats, and minimizing alteration of natural strear- ,
30232.
Protection against the spillage of crude oil, gas, petroleum products, or:,g zrd.
ous substances shall be provided in relation to any development or transpqrtation
of such materials, Effective containment and cleanup facilities and procedures shal
be provided for accidental spills that do occur.
30233.
(a) The diking, filling, or,dredging of open coastal waters, wetlands, estuaries,
and lakes shall be permitted in. accordance with other applicable provisions of this
division, where there is no feasible less environmentally damaging alternative, and
where feasible.,mitigation measures have been provided to minimize adverse envir-
onmental effects, and shall be limited to the following:
(1) New or expanded port, energy, and coastal-dependent industrial facilities, in-
eluding commercial fishing facilities.
(2) Iaintaining existing, or restoring previously dredged, depths in existing navi-
gational channels, turning basins, vessel berthing and mooring areas, and beat
launching ramps.
(3) In wetland areas only, entrance channels for new or expanded boating facili-
ties; and in a degraded wetland, identified by the Department of Fish and Game
pursuant to subdivision (b) of Section 30411, for boating facilities if, In conjunction
with such boating facilities, a substantial portion of the degraded wetland is restor-
ed and maintained as a biologically productive wetland; provided, however, that
in no event shall the size of the wetland area used for such boating facility, includ-
ing berthing space, turning basins, necessary navigation channels, and any necessary
support service facilities, be greater than 25 percent of the total wetland area to be
restored.
(4) In open coastal waters, other than wetlands, including streams, estuaries, and
lakes, new or expanded boating facilities.
(5) Incidental public service purposes, including, but not limited to, burying cables
and pipes or inspection of piers and maintenance of existing intake and outfall
lines.
(6) Mineral extraction, including sand for restoring elraclles, except In environ-
mentally sensitive areas.
(7) Restoration purposes.
(8) Nature study, aquaculture, or similar resource-dependent activities,
(b) Dredging and spoils disposal shall be planned and carried out to avoid signifi-
cant disruption to marine and wildlife habitats and water circulation. Dredge
spoils suitable for beach replenishment should be transported for such purposes to
appropriate beaches or into suitable longshore current systems.
(C) In addition to the other provisions of this section, diking, filling, or dredging
in existing estuaries and wetlands shall maintain or enhance the functional capaclty
of the wetland or estuary. Any alteration of coastal wetlands identified by thI
Department of Fish and Game, including, but not limited to, the 19 coastal wetlanlds
identified in its report entitled, "Acquisition Priorities for the Coastal Wetlands of
California", shall be limited to very minor incidental public facilities, restorative
measures, nature study, commercial fishirng facilities in Badega Bay, and develop-
ment in already developed parts of south San Diego Bay, If otherwise in accord-
ance with this division.
30234.
Facilities serving the commercial fishing and recreational boating industries shall
be protected and, where feasible, upgraded. Existing commercial fishing and rec-
reational boating harbor space shall not be reduced- nless the demand fer.those
facilities no longer exists or adequate substitute space has been provided, Pxoposed
recreational boating facilities shall, where feasible, be designed and located in such
a ftashlon as not to interfere with the needs of the commercial fishing it.
30235. , a,.-.: :, i : -. , '
Revetments, breakwaters, groins, harbor channels, seawalls, cliff re'ta.lpg walls,
and other such construction that alters natural shoreline processes shall. bedpermit-
ted when required to serve coastal-dependent uses or to protect existing structures
or public beaches in danger from erosion and when designed to eliminate or' miti-
gate adverse impacts on local shoreline sand supply. Existing marine structures
causing water stagnation contributing to pollution problems and ffshkiils should
be phased out or upgraded where feasible.
30236. . . ;
Channelizations, dams, or other substantial alterations of rivers and streams shall
incorlorporate the best mitigation measures feasible, and be limited'to (X1).ecessary
water supply projects, (2) flood control projects where no other method for protect-
ing existing structures illn the flood plain Is feasible and where such protection is
lneces.sary for llllic safety or to protect existing developli,'nt, or (3) developments
where the primary function is the Improvement of fish and wildlife habitat.

237

ARTICLE 5. LAND RESOURCES
30240.
(a) Enlvironmentally sensitive habitat areas shall be protected against iny signi-
ficant disruption of habitat values, and only uses dependent on such resouces shall
be allowed within such areas.
(b) Development in areas adjacent to environmentally sensitive habitat areas
and parks and recreation areas shall be sited and designed to prevent impacts
which would significantly degrade such areas, and shall be conmpatible with the
continuance of such habitat areas.
30241.
The maximum amount of prime agricultural land shall be maintained in agricul-
tural production to assure the protection of the areas' agricultural economy, and
conflicts-shall be minimized between agricultural and urban land uses through all of
the following:
(a) By establishing stable boundaries separating urban and rural areas, Including.
where necessary, clearly defined buffer areas to minimize conflicts between agricul-
tural and urban land uses.
(hi) By limiting conversions of agricultural lands around the periphery of urban
areas lo the lands wahere the viability of existing agricultural use is already severe-
ly limited by conflicts with urban uses anid where the conversion of the lands would
complete a logical and viable neighborhood and contribute to the establishment of a
stable limit to urban development.
(c) By developing available lands not suited for agriculture prior to the' convr-
sion of agricultural lands.
(d) By assuring that public service and facility expansions tlld nonagricultutral
development do not impair agricultural vinbility, either through increased assess-
ment costs or degraded air and water quality.
(e) By assuring that all divisions of prime agriculutral lands, except those con-
versions approved pursuant to subdivision (b) of this section, and all development
adjacent to prime agricultural hiands shall not diminish the productivity of sueh
prime agricultural lands.
30242.
All other lands suitable for agricultural use shall not be converted to nonagricul-
tural uses unless (1) continued or renewed agricultural use Is not feasible, or (2)
such conversion would preserve prime agricultural land or concentrate development
'eonsistent' with .Seefion 30250. Any such permitted conversion shall be cmh'tlhble
with continued agricultural use on surrounding lands.: " ' ;: .
30243. t. . . ;, . .
The long-term proiluctivity of soils and timberlands shall be protected, idco-n
versions of coastal commercial timberlands in units of commercial size to'othefiises
or their division into units of noncommercial size shall be limited to provdling for
necessary timber processing and related facilities. :
30244. . .
Where development would adversely impact achaeological or paleontolo9g, rei-
sources as Identified by the State Historic Preservation Officer, reasonable inltiga.
tion measures shall be required.

ARTICLE i. DIEVELOPMENT
30250.
(a) New development, except as otherwise pro-vided In this division, 'shall be
locateid within, contiguous with, or in close proximity to, existing developed 'areas
ablh lo accommodate it or, wllhere such :reas are not able to accounnmodate It, in
other areas with adequate public services and where it will not have signiflican
)adverse effects, either individually or cumulatively, on coastal resources. In addi-
tion, land divisions, other than leases for agricultural uses, outside existing de-
vcloped areas shall be permitted only where 50 percent of tlle usable pircels ill
the area have been developed and the created parcels would be no simaller than
the? average size of surrounding parcels.
(b) Where feasible, new hazardous industrial development shalll be located awayv
from existing developed areas.
(e) Visitor-serving facilities that cannot ftasibly be located ill existinTg de'vloped
areas shall be located in existing isolated develolpments or al selected points of
attraction for visitors.
30251.
I'la, setule and visual qualities of coastal areas shall Xbe considered and protected
Ils a resouldree of p idle inportalne, Perimitted developtnuat shall be sited and e do-
stiglnmd to iprotect views to and along the oeeanll anid sellle coastal areaS, to minimize
the alteration of natural land forms, to be visually compatible witl the character
of surrounding areas, and, where feasible, to restore and enhanci visual quality in
visually degraded areas. New development in highly scenic areas such as tlbostI
designated In tile California Coastline Preservation and IRecreation Plan prepared
by the Department of Parks and Recreation and' by local governcllat shall be sulb-
ordinate to tihe character of its seRtting.

238

30252.
The location and amount of new development should maintain and ceflbae public
access to the. coast by (1) facilitating the provision or extension Of transit service,
(2) providing commercial facilities within dr adJoinlng residential development or
In other areas that will minimize the use of coastal access roads, (3) providing non-
automobile circulation within the development, (4) providlng adeqtlate' parklng fit-
cilities or providing substitute means of serving the development with public trans-
portation, (5) assuring the potential for public transit for high intensity uses such
as high-rise office buildings, and by (6) assuring that the recreational needs of new
residents will not overload nearby coastal recreation areas by correlating the amount
of development with local park acquisition and development plans with the provi-
sion of onsite recreational facilities to serve the new development..
30253.
New development shall:
(1) Minimize risks to life and property in areas of high geologic, flood, and fire
hazard.
(2) Assure stability and structural integrity, and neither create nor contribute
significantly to erosion, geologic Instability, or destruction of the site or surround-
tlg area or 4n, any. way require the -onstruclion ot:;pJotetiVe- dgevice .t . would
substantially alter. natural. landfoms along bluffs and Aliffs. , , X:~ s 't ,~ -,,
(3) Be consistent' With requirements imposed by an air pollutloa ,eantroldlstriet
or the State Air Resources Contrbl:Board& abto each particular develbpmebli -
(4) Minlmize'enei'"'consumptiion and vehiceleitile*straveled.'' ''i "; : i' ,.. .
(5) Where aprprpriate; protect special communities and nelgbtorhood %Whlcb,
because of their unique characteristics, are popular visitor destination pointi for
recreational uses. :,,, . . - i .; ., ; ' .
30254.
New or expanded public wvorks facillties shall 'lid designed and' limited 'taceom-
modate needs generated by development or uses permitted consistent 'iti:'the pro-
visions of this division; provided, however, :that it is sthe intent of the;Legislature
that State Highway Route 1 in rural areas of the coastal zone. remain aiscenic
two-lane road. Special districts shall not be formed or expanded excepts where as-
sessment for, and provision of, the service would not Induce new development In-
consistenlt with this division. Where existing or planned public worksl faellitlies
can accommodate only a limited amount of new development, services :to. coastal-
dependent land use, essential. public services and basic industries vital to tae eeo-
nomlic health of the region, state, or nation, public recreation, commercial recrea-
tion, and visitor-servillg land uses shall not be precluded by other development,
30255.
Coastal-dependent developments shall have priority over other developments on
or niear the shoreline. Except as provided elsewhere in this division, coastal-de-
pendent developments shall not be sited in a wetland.
ARTICLE 7. INDUSTRIAL DEVELOPMENT
30260.
Coastal-dependent industrial facilities shall be encouraged to locate, or.expand
within existing sites and shall be permitted reasonable long-term growth where
consistent with this division. However, where new or expanded constal-depepdent
industrial facilities cannot feasibly he accommodafed consistent with'other policies
of this division, they may nonetheless be permitted in accordance with this section
and Sections 30261 and 30262 if (1) alternative locations are infeasible or more
environmentally damaging; (2) to do otherwise would adversely affect the public
welfare; and (3) adverse environmental effects are mitigated to the'maximum ex-
tent feasible. , ;
30261.
(a) NMiltijonmlilny use of existing and new tanker facilities shall be encourraged
to thie maxiIltllm extent feasible andl legally permissible, except where to do so
would result in increased tanker operations and associated onshore developmelnt
Incompatible witl the lami use and environmenltal goals for the area. New tanker
terminals outside of existing terminlll areas shall be * * * situated as to
avoid risk to environlmenthlly sensitive areas and shall use a monobuoy system,
unle'ss an alternative type of system can be shown to be environmentally preferable
for a specific site. Tanker facilities shall be designed to (1) minimliza the totli
volume of oil spilled, (2) minimize the risk of collision front movement of other
vessels, (3) have ready access to tihe most effective feasible containment lnd
recovery equipment for oilspills, anl (4) have onshore deballiasting facuiltles to
receive any fouled ballast water from talkers where ol)eratlonally or legally re-
quired.
ki nly pilt , l)lutt laltlral gaolls telllill silllll gte Irln lt tedl l the Coilstll
r.on unlt iI engineering and operational prjactices can elmiilate ally significallt riskl
to life dlue to accidenlt or until guaranteed suppl)lies of liquefied natural gas and
distrllulflion system dependence on lilquefiel natural gas are substantial enough
that all Interruption of service from a single liquefied natural gas facility would
cause sublstaltial public harm.

239

Until the risks Inhierent in liquefied natural gas termllinal operations call 1n'
sufficiently identified and overcome and such terminals are found to be consistinut
with itih health and safety of netirby human Ipopulations, terminals shalll be built
only a:t sites remote from human population concentrallions. Other tnrelated
developinent in the vicinity of a liquefied natulral gas termna:l site whieh is l'-
mote from hlman population concentrations shall be prohibited. At suchll time as
liquefied natural gas marine terminal operations are found consistent with public
safety, terminal sites only In developed or Industrialized port areas /a5t oe. p
proved. _ ,
30262. * b !
Oil and gas development shall be permitted In accordance with Section- 8oo,
if the following conditions are met:
(a) The development is performed safely and consistent with the geologlc con-
ditions of the well site.
(b) New or e6panded faCilities related to such development are consolidated,
to the maximum extent feasible and legally permissible, unless consolidation will
have adverse environmental consequences and will not significantly reduce the
number of producing wells, support facilities, or sites required to produce the
reservoir economically and with minimal environmental impacts.
(c) Environmentally safe and feasible subsea completions are used when drilling
platforms or islands would substantially degrade coastal visual qualities unless
use of such structures will result In substantially less environmental risks.
(d) Platforms or islands will not be sited where a substantial hazard to vessel
traffic might result from the facility or related operations, determined in con-
sultation with the United States Coast Guard and the Army Corps of Engineers.
(e) Such development will not cause or contribute to subsidence hazards unless
It is determined that * * * adequate measures will be undertaken to prevent
damage from such subsidence.
(f) With respect to new facilities, all oilfield brines are reinjected into oil-
producing zones unless the Division of Oil and Gas of the Department of Con-
servation determines to do so would adversely affect production of the reservoirs
and unless injection Into other subsurface zones will reduce environmental risks.
* * * Exceptions to reinJections will be granted consistent with the Ocean
Waters Discharge Plan of the State Water Resources Control Board and where
adequate provision is made for the elimination of petroleum odors and water
quality problems.
Where appropriate, monitoring programs to record land surface and near-shore
ocean floor movements shall be initiated in locations of new large-scale fluid
extraction on land or near shore before operations begin and shall continue until
surface conditions have stabilized. Costs of monitoring and mitigation programs
shall be borne by liquid and gas extraction operators. .
30263.
(a) New or expanded refineries or petrochemical facilities not otherwise con-
sistent with the provisions of this division shall be permitted if (1) alternative
locations are not feasible or are more environmentally damaging; (2) adverse
environmental effects are mitigated to the maximum extent feasible; (3) it is
found that not permitting such development would adversely affect the public
welfare; (4) the facility is not located in a highly scenic or seismlcally hazardous
area, on any of the Channel Islands, or within or contiguous to environmentally
sensitive areas; and (5) the facility is sited so as to provide a sufficient buffer
area to minimize adverse impacts on surrounding property.
(b) In addition to meeting all applicable air quality standards, new or ex-
panded refineries or petrochemical facilities shall be permitted in areas desig-
nated as air quality maintenance areas by the State Air Resources Board and in
areas where coastal resources would be adversely affected only If the negative
impacts of the project upon air quality are offset by reductions In gaseous emls-
sions in the area by the users of the fuels, or, in the case of an expansion of an
existing site, total -site emission levels, and site levels for each emlssion type lor
whiich national or state ambient air quality standards have been established,do
not Increase. , . . ... . i
i(e) New or 'expanded refineries r6i petrochemical facillties shall. mwin imz
need for once-through cooling by using air cooling to the maximum extent'fdaable
and .by using treated waste waters from inplant processes where feasible.
30264.
Notwithtanding any other provlsian of thl, division, except subdivision (i) and
(c) of Sctlion 80418, new or expanded thermal electvclq. erating plate:s may be
constructed In the coast. .olne it. thle proposed coastal site has beep,.Gt�rqlmed
by the State,DeLrg~-! esources p. aserviton and Deelo.p..ent tomtll88�1 _. h:ave
greater relative merit;pursuant tothe pryroisios of Sectlon 25518.1 than HntMble
alternative sites, and relatel facilelles for. an applicant's service area W 'll4.Pve
been determined to be aqceptable pursuant to the provisions of Sectole 2.16l,,

240

�30303. Regional commissions; selection oralPpolniment of menibersi~
The montbolirs of the regional collunishions shall lieo sveletd or pote fl
lows:
(a) All supervisors, by the hoard of supervsors on which faery sit.
(b) All (113' vounlfl('ii5rsons, excepit iinilr paragraph (2) of utbdIVi~l~ imi'anl
paragraph (2) of subdivisioni (1') of Section 30302, by tMe city solectiolt eopiagrttoe of
their respxectiv counties.
(C) All dolegates of regional agencies, by their respective agency.,
(l) All niernlers re~presenting the( public at large, equally by the G6ear, tiw
Senate Wlnis ('nininittee, and tlic Speaker of the Assembly ; provided, however, thot
the extra nicinher 1und(r paragraph (4) (if subidivisiiir (b) of 8(ection 3030 aludi lie
appolfl ed by tile Governor and the extra nicibers8 undei panrigraph (4)'i of autdivi-
sln(c) of Section :30302 sluiall be apipoiiited tine by the Senlate Itules Clomnlnttee alkd
one, by the Speaker (if the Assembly, respectively.

�30304. Regional commissions; alternate members '
A member of a regional commission who Is also a supervio fo$cunty
or city and county with it population greater than 400,000 may, sujct~ffrnat-
tion by his or tier appointing power, appoint an alterna1te mmbro e sent him11
or tier at any regional conunnission. meeting. The aiterliate ,hal seveoV s pc-
sturt of tho maember who appointed him or hier ande slaull haveallWper and
duties as at nember of the regional commission, except that th leiaeshall
only participate and vote in meetings In the absenece of the member whii, nOPoited
him or her.
An alternate shall not be eligible for appointment to the coummissio'nj',j a regional
representative to the commission. -

�30304.5 Regional commissions; selection of represontatlYSS to 00111iIii64n Cer-
tification of necessity of regional commission
(a) The regional commission shall be established pursuant tO, the ~PryisioIIS Of
this chapter and shall, no litter than January 11, 1977, select their" repjesentatives
to the commission. t- -
(b A regional commission shall take no action, other than seet8 ~ ersna-
tive to the commission as provided in subdivision (a), and slal hin&pers,
duties or responsibilities pursuant to the provisions of this divisinu~~ p until
the commission, pursuant to subdivision (c), has certIfied that th egQ% cmi-
sion for tiny region is neceessary to expedite the review of loca rot~ains0~~
and coastal development permit applications pursuant to the povIli tll divi-
sion.
(c) The commission, ~,jball ..1rovew% the, aqtj!~Ixted ..worprloa4~ h
proessngandreveWO~ Q(IqW. coa.stal prograijanjm cO cstal r vo trst
within each, region~ ~op.the. toast$a zone., i V the Fommi~slordnlm ~Ia s
workload adthe '.At~ilpated, workload wilW%., a' iop olqJ inde
that. unreasopable ~delays will result ne �eapoltee
is authorized., t4 'reviewanid propess. Jocgjoast4j programsed Vlf
ment, p~rmit apiaInh omaln~l. by, lnaoriyvt O ' i~e
memiber.9, certify .that such regional' comnimission: Is ncsay o1
provisions of this division. Upon certification, by the commn~issionj e~tt
this subdivision; 'the appropriate: regiomial 666rhi:MiAii' shall isersW
duties and responslbii~ties provided in this division. ~ ,
(d) -In the absence of a certification pursuaat~ to subdivision. (c), 4 0mm Iss on
shall, within a ny 'region' of' the 'coastmi 1one aIlm'~ l~ ~ 11
responsibilities of the regional' commission pvidv~dd in' this dtl'
certification pursuant to. subdivision (c), the 'powevs,s, duties adrs~Ibltites
of the commission and, the appropriate -regional comintision. s LbIUdin
the manner provided In this division. -
30305. loa
Each regional commission shall terminate within 30 days wierthe:]~ oa
coastal program required within its region pursuant to ChaPter 6 lease~gwth
Seection 301500): of this division has been certified and All lmIeieli eie
have become effective or JTune 30, 1979), whichever Is the ear'lieft.' ~ pl the
termination of any regional commission, .the coimmjssion shallsuee diAy andi
all of such regional comumissioni's obligations, powers, duties, ,reposblte be-
'It"or I gal IInterests. - -

243

930310. Transition
(a) It Is the Intent of the Legislature to provide', to the mnaximmexe.~sbe
for a smooth transition and continuity between the coastal proga by
the. California Coastal Zone Conservation Act of 1972 (coninenCn ~i ~~ton
27000) and this division. E~xcept with respect to appointmentsad ?f~it to
subdivision (e) of Section 30301, at least one-half of each of ah on~1Ir rd
regional contiission member appointments by the Governor, theSeaeul C-
mittee, and the Speaker of the Assembly shall be persons who on No mr30
1976, were serving as members of the California Coastal Zone ConservatnCm
mission or regional coastal zone conservation commissions established b h
California Coastal Zone Conservation Act of 1072 (commencing with BMWi 200)
unless such persons are not available for such appointment."

'N0twithstanding aby; Other provision of law, each member of -the comuriD i0''. j
epeil regional. qqmmini~iol .shall be appointed or selected on or ,befpope Jki'2
1977. ,
30312.
The terais of office of commission and regional commission OR
follows:-
'-(a Any person qualified, for membership because, he or. shehls~ efe
off-lce as a locally' elected official shall seats~ at the pjeasljre ofhso0 ~ x ee~n
or~ appointing authority';- provided, however, that, sachli~nenberai shl e.e en
his or. her term of office ~as ; lo(!aily, elected official ceases. - -
(b) Any member appointed by the Governor, the Senate ue -committ' orthe
Speaker of the Assembly shall -serve f~r two ybars -at the'pesr f~fl~ipit
Ing power, Such members may be reappointed for succeeding- two-erpros
. '(c) - Members of the commission who -are representatives of a reginliomsso
:shail serve on the commission at the pleasure of the ifgionai commissiof -

Vacancies that o'u shal' be filled within 30 days after tile ocu
vacancy, and shall be filled in the same manner in which the vacaltin mnbpwas
selected or appointed,

---Except as provided In this. section, members or alternate of the comI4tifiti or
apy regional commission shall serve without compensation but, shall be- P6,4p~re
for actual and necessary expenses incurred iu.. the. performanceo hi ~e to
the extent that reimbursementi for such expenses is' not othe'rwsprvd i#a-
W~e. by another public agency, or agencies, and. shall receive ffldla5(~) o
each full day of attending meetings of the commission or of ayrgoa oms
sion, In addition, members or alternates of the commission haleeijweve
dollars and fifty cents ($12.50) for each hour actpally- spent in preparatiO*"4or a
commission meeting; provided, however, that for each .meeting no more tba 1 ht
hours of preparation time shall be compensated as provided heretin
An alternate shall be entiltlc to -piLiment'and reimbur~mn for'~ i~sr
expense-s incurred in paidtfepa'thIb In regional commission -or commission i.tl4gs
Pifovfded, however ,O" that onlyti~ 66e'mber o'rl his or her altIernate shall~tb iuch
payinent'and' relinbursentent, and if both the member and alternate preparef~t, In
.Acase of alternates to, the colbniission, attend, and participate in'any pi'tIm of a
regional commission ~oi,'ommlsslon meeting, only, the alternate shaf~,glled
to Such Payment arid reimburameent.

The commission and regional- eonw~ssfou shaUl raeet at, least once a 01 kt a
place convenient to the public. -A.l meetings of the Commission and eMig~4a
commission shall be open to'the public.-'-.j''.
Unless otherwise specifically provided for In this division, a majority tb~tta
~poitedmembrshp of the commission oroqf the regiona omsin a~l ls
m4ay be,~shall cionst`ItU-W"iA' ii ai 'hal~~e'ees~ stopprove waiif t r-;
quired or, permitted urider taIsdIvsisn '"' ~'-~

244

The commission and each regional commission shall elect a chairper.ot RA ,vIce
chairperson frori.among its members. .. L. .,.
30317 , . .;. i. . . : - a;, 1 . A d3
The headquarters of the commission shall be in a coastal Count~;, ut :l3.meet
and may exercise any or all of its powers in any pait of'the state.
The commission shall designate the locati:oniof tihe headquarters for.'ach regional
commission within the region of such regional comnmission. After the termniatlon of
a regional commission pursuant to Section'30305, the commission may kanaittain re-
gional offices, if it finds that accessibility to; and participation by, 'the*bibllbi will
be better served or that the provisions of this division can be Implemented? whore
efficiently through the maintenance of such offices. '
30318. ' : .. . .
Nothing in this division shall preclude or prevent any member or employee0of the
commission or any regional commission who is also an employee of another public
agency, a1 county supervisor or city councilperson, member of the Association of Bay
Area Governments, member of the Association of Monterey Bay Area Governments,
delegate to the Southern California Association of Governments, or meribr' of the
San Diego Comprehensive Planning Organization, and who has in such`'6d.sgnated
capacity voted or acted upon a particular matter, from voting or otherwise acting
upon such matter as a member or employee of the commission or apy regional com-
mission, as the case may be. Nothing in this section shall exempt any such member
or employee of the commission or any regional commission, from any ot0erprovi-
sion of this article.

ARTICLE 3. POWERS AND DUTIES, ,
30330. :. :
The colmmission, unless specifically otherwise provided, shall have tbe-primalr
responsibility for the impllelentation of the provisions of this division and Is desig-
nated as the sltate coastal zone planning and management agency for any and all
purposes, an'd may exercise any and all powers set forth in the Federal Coastal
Zone MaInagemelnt Act of 1972 (16 tU.S.C. 1451, et seq.) or any amendment thereto
or any other federal act heretofore or hereafter enacted that relates to the planning
or management of the coastal zonei
In addition :o any other authority, the commission may, except for a facility
defined ill Section 25110, grant or issue any certificate or stattemaent required
pursuanlt to any suchl federal law that an activity of any person, illcludlng any
local, state, or federal agency, is il conformity with the provisions of this division.
With respect to any project outside the coastal zone that may have a substantial
effect on the resources within the Jurisdiction of the San Francisco Bay.: Con-
servation and I)evelopment Commission, established pursuant to Title 7.2 (com-
mencing with Section 66600) of the Government Code, and for which -by'ertlfi-
cation is required pursuant to tile Federal Coastal Zone Management Act of 1972
(16 U.S.C. 1451, et seq.), such certification shall ble issued by the Bany Consqrvation
and Development Commission: provided however, the commission may 'review
and submit comments for any such projeet which affects resources within the
coastal zone.
30331.
The commission is designated the successor in interest to all remaninng'bbiiga-
tions, powers, duties, responsibilities, benefits, and interests of any sort of the Cal-
ifornia Coastal Zone Conservation Commission and of the six regional coastal zone
conservation commissions established by the California Coastal Zone Consevation
Act of 1972 (commencing with Section 27000). .
30333. ' , ..
The commission may adopt rules and regulations to carry out the puposes and
provisions of this division, and to govern procedures of the commission and.reglonal
commissions.
Each regional commission may adopt any regulation or take any action it deems
reasonable and necessary to carry 'out the provisions of this division; prviylded,
however, that no regulation adopted by a regional commission shall take defet until
the commission has first reviewed such proposed regulation and found It.!ihlstent
with this division. .
Except as provided in Section 30501 and. subdivision. (a), of 8ectlio.I;0Q20 .scmh
rules antl regulations shall be adopted in accordance with the A4dmsiatrltavi;i .qc
dure Act (commencing with Section 11370 of the Government Code). Such 'rii and
regulations shall be consistent with this division and other applicable law., ;: -' ;-;,
30333.5.
Notwithstanding any other provision of this division, the commission may, by
a majority vote of the appointed members, remove any local coastal program or

245

any portion thereof, any coastal developmient 'permit application or appeI thiire.
from, from any regional commission for direct consideration and adioi by the
commission where to do so would expedite the review of such local coastal program
or coastal development 'permit application pursuant to" this division. Thei loin.
mission shall' make such removal where it finds thatthe regional couilmlglon
Is not processing the local coastal program or any 'portion thereof, a' coastal
development permit application, or appeal therefrom, in a reasonably eipedftious
and timely manner. : ' :
30334. . , .:"
The commission and each regional commission, subject to the approval of the
commission, may do * * * thefollowing: * e e :.
(a) Contract for any private professional or governmental services, If such work
or services cannot be satisfactorily performed by its employees.
(b) Sue and be sued. The Attorney General shall represent the commission and
any reglonal commission In any litigation or proceeding before any court' ;board, or
agency of the state or federal government.
30334.5.
In addition to the authority granted by Section 30334, the commission may
apply for and accept grants, appropriations, and contributions In any form.
30335.
The commission and each regional commission shall appoint an executive director
who shall be exempt from civil service and shall serve at the pleasure opf his or
her appointing power. The commission shall prescribe the duties and salaries of
each executive director, and, consistent with applicable civil service laws, shall ap-
point and discharge any officer, house staff counsel, or employee of the commission
or any regional commission as it deems necessary to carry out the provisions of
this division.
30336.
The commission and each regional commission shall, to the maximum extent feasi-
ble, assist local governments in exercising the planning and regulatory powers and
responsibilities provided for by this division where the local government elects to
exercise such powers and responsibilities and requests assistance from the commis-
sion or regional commissions, and shall cooperate with and assist other public agten-
cies in carrying out this division. Similarly, every public agency, including re-
gional aid state agencies and local governments, shall cooperate with the coU1mmis-
sion and an$ regional commission and shall, to the extent their resources permit,
provide any advice, assistance, or information the COinllmission or regional cominis-
sion may require to perform its duties and to more effectively exercise its authority.
30337.
The commission shall, where feasible, and In cooperation with the affected agency,
establish a joint developmenit permit application system and public hearing proce-
dures with permit issuing agencies. .
30338.
By May 1, 1977, the commission, after full consultation with the State Water
Resources Control Board, shall adopt regulations for the timing of Its review of
proposed treatment works pursuant to the provisions of subdivision (c) of Section
30412.
30339.
The commission and each regional commission shall:
(a) Ensure full and adequate participation by all Interested groups and tile
public at large in the commission's and each regional commission's work progranm.
(b) Pnsure that timely and complete notice of commission and regional commis-
sion meetings and public hearings is disseminalted to all interested groups and the
public at large.
(c) Advlse all Interested groups and the public at large as to effective ways of
)participating in commission and regional commission proceedings.
(d) Recommend to any local government preparing or implementing a local coastal
program and to any state agency that is carrying out duties or responsibilities pur-
suant to the provisions of this division, and additional measures to assure open
consideration and more effective public participation in such programs or activities.
30340.
The commission shall be respoisible for' the miageitent ''nd bud.ti: ib any
and all funds that may be appropriated, aliocated; yr{bted;. 0o - n a i;way
made avilable.to the commission or any' regonatcomrhi'sison for dii/djiit.''

adopted after public hearing. . , . t
30342. . , - . , .1 ..
The commission shrall revaluate progresso, bewith tade toward implemen tas of
the provisions of this division and shall submit a report to the Governor and Leg.
isllture on January 1st of every other year, commencing on January 1, 1970.

246

CHAPTER ,. STATE AGENCIES . .

ARTICLE I. GENERAL
30400.
It Is Ihe intent of the Legislature to minimize duplication and conflicts among
existing slate' agencies carrying out their regulatory duties and responsibillties.
30401.
Except as otherwise specifically provided in this division, enactment of this
division does not increase, decrease, duplicate or supersede the authority of any
existing state agency. * * *
This chapter shall not be construed to limit in any way the regulatory controls
over development pursuant to Chapters 7 (commencing with Section 80600) and A
(commencing with Section 30700), provided however, neither the commission nor
any regional commission shall set standards or adopt regulations that duplicate
regulatory controls established by any existing state agency pursuant to specific
statutory requirements or authorization.
30402.
All state agencies shall carry out their duties and responsibilities In conformity
with this division.
30403.
It is the intent of the Legislature that the policies of this divisionl and all local
coastal programs prepared pulrsmunt to Chapter 6 (commencing with Section 805001
should provide the common assumptions upon which state functional plans for the
coastal zone are based in accordance with the provisions of Section 65038 of the
Government C(ode.
30404.
The commission shall periodically, in the case of the State Energy Resources
Conservation and Development Commission, the State Board of Forestry, the
State Water Resources Control Board and the California regional water quality
control boards, the State Air Resources Board and air pollution control districts,
the Department of Fish and Game, the Department of Parks and Recreation, the
Department of Navigation and Ocean Development, the Division of Mines and
Geology, the Division of Oil and Gas, and the State Lands Commission, and may,
with respect to any other state agency, submit recommendations designed to
encourage it to carry out its functions in a manner consistent with this divisloln.
The recommendations may include proposed changes in administrative regulations,
rules, and statutes.
Each such state agency shall review and consider such recommendations and
shall, within six months after receipt and in the event the recommendatlons are
not implemented, report to the Governor and the Legislature its action and reasons
therefor. Such report shall also include the agency'a comments ol .any le.gIl;)n
which may have been proposed by the commission. , ,. .... . ,: im.t
ARTICLE 2. STATE AGENCIES r ;
30410.
(a) The commission and the San Francisco Bay Conservation and Development
Commission shall conduct a joint review of this division and Title 7.2 (commenclng
with Section 66600) of the Government Code to determine how the progeal ?*
ministered by the San Francisco Bay Conservatiq annd Development !oiriiB
shall be related ;to this dtlysion. Cloth .commisslons shall jointly preieit i e.
ommendations to the Legislature not later than Jtuly i, 178.
(b) It is the intent of the Legislature that the ports under the jur;idinction3l;it/e
San Francisco Bay Conservation and Development Commission, including theJffts
of San Franlcisco,' Oakland, Richmond,' Redwood City, Encinal' "ernilnalB'Ctmnd
Benicia, should t'e treated no less favorably than the ports iindet the jUrliif�iifi
of the commigslon covered' in Chapter 8 ('ommehcing with Section 80700) ilnd1t the
terms of any legislation which Is developed pursuant to stilh stildy.
30411.. ' I.,
(a) Tile Department of Fish and Game and the Fish and Game Colmimssloio-t)re
the principal state agencies responsible for the establishment and control of WIldlife
and fishery managemenit programs and neither the otmnmission nor nny;'Irgional
commission shall establisi: or Impose any controls witlh respect thereto that dupli-
cate or (exceed regulatory controls established by such agencies pursuant to specific
statutory requirements or authorization.
(b) The Department of Fish and Game, in consultation with the commission- and
the Department of Navigation and Ocean Development, may study degrade] wet-
lands and Identify those which can most feasibly Ibe restored In conJuncti 6~.with
development of a boating facility is provided in subdivision (a) of Section 82M3.
Any such study shall include consideration of all of the following:
(1) Whether the wetland is so severely degraded and its natural processes so
substantially impaired that it is not capable of recovering and maintaining a high
level of biological productivity without major restoration actlvities.

247

(2) Whetler a substantial portion of tile degraded wetland, but in no event less
than 75 percent, can be restored and maintained as a highly productive wetland In
conjuLnctioll with a boating facilities project.
(3) Wlether restoration of the wetland's natural values, including Its biological
protluctivity and wildlife habitat features, can most feasibly be achieved and main-
tained in conjunction with' a boating facility or whether there are other feasible
ways to achieve 4ueh values.

(a) Inl addition, tb the provisions set forth in Section 1S142.5 of the Wrter;Oddo,
the provisions of this section shall apply to the commission 'and the State, Water
Resources Control Board and the California regional water quality control 'boardA.
(b) The State Water Resources Control Board and the California regional water
quality control boards are the state agencies with primary responsibility'forthe
coordination and control of water quality. The State Water Resources Control
Board has primary responsibility for the administration of water rights pursuant
to applicable law. The commission shall assure that proposed developnerlt and
local coastal programs shall not frustrate the provisions of this section. Nelither
the commission nor any regional commission shall, except as provided in sub-
division (e), modify, adopt conditions, or take any action in confllct with any de-
termination by the State Water Resources Control Board or any California re-
gional water quality control board in matters relating to water quality or the
administration of water rights.
Except as provided in this section, nothing herein shall be interpreted In any
way either as prohibiting or limiting the commission, regional commnssldii, local
government, or port governing body from exercising the regulatory controls over
development plursuant to this division illn a manner necessary to carry out the
provisions of this division.
(c) Any development within the coastal zone or outside the coastal zone which
provides service to any area within the coastal zone that constitutes a treatment
work shall be reviewed by the comllission and any permit it Issles, if any, shall
be determinative only with respect to the following aspects of such development:
(1) Thle siting and visual appearance of treatment works within the coastal zone.
(2) The! geographic limits of service areas within the coastal zone which are to
bo served by llrtlclhtr treatment Ivorks and the timing of the use of capacity of
treatnmelnt works for such service areas to allow for phasing of development and
use of facilities consistent with this division.
(3) Development projections which determine the sizing of treatment works for
providing serv icl within the coastal zone.
Tile collmmission shall * * * make these determinations in accordance with
the policies of this division and shall make its final determination on a permit
application for a treatnlent work prior to tile final approval by the State Water
Resources Control Board for the funding of such treatment works. Except as
specifically provided in this subdivision, the decisions of tile State Water lie-
sources Control Board relative to the construction of treatment works shall be
final and binding upon thile commission and any regional commission.
(d) The commission shall provide or require reservations of sites for the con-
structioll of treatment works and points of discharge within the coastal: zone
adequate for the protection of coastal resources consistent witl the provisions of
this division.
(e) Nothing in this section shall require the State Water lResources Control
Board to find or certify for findling, any specific treatment works within the
coastal zone or to prohibit the State Water Resources Control Board or' any
California regional water quality control board from requiring a higher degree
of treatlelt at any existing treatment works.
30413.
(a) In addition to the provisions set forth in subdivision (f) of Section 30241, and
In Sections 25302, 25500, 25507, 25508, 25514, 25516.1, 25519, 25523, and 25526, the
provisions of this section shall apply to the commission and the State Energy. Re-
sources Conservation and Development Commission with respect to matters within
the statutory responsibility of the latter.
(b) iThe commlission shall, prior to January 1, 1978, and after one or more public
hearings, designate those specific locations within the coastal zone where the loca-
tion of a facility as defined in Section 25110 would prevent the achievement of the
objectives of this division; provided, however, that specific locations that are pres-
ently used for such facilities and reasonable expansion thereof shall not be so desig-
nated.: Each such designation shall include a description of the boundaries of such
locations, the objectives of this division which would be so affected, and detailed
findings concerning the significant adverse impacts that would result from develop-
ment of a facility in the designated area. The commission shall consider the con-
clusions, if any, reached by tile State Energy Resources Conservation and Develop-
ment ( ommission in its most recently promulgated comprehensive report issues
pursuant to Section 25309. The commission shall transmit a copy of its report pre-
pared pursuant to this subdivision to the State Energy Resources Conservation and
Developlllent Commission.

248

(c) The commission shall every two years revise and update the designations
specified in subdivision (b) of this section. The provisions of subdivision (b) of this
section slhall not apply to any sites and related facilities specified in any notice of
intention to file an application for certification filed with the State Energy Ite-
sources Conservation and Development Commission pursuant to Section 25502 prior
to designation of additional locations made by the commission pursuant to this sub-
division.
(d) Whenever the State Energy Resources Conservation and Development Com-
mission exercises its siting authority and undertakes proceedings pursuant to the
provisions of Chapter 6 (commencing with Section 25500) of Division 15 with re-
spect to any thermal powerplant or transmission line to he located, ain whole or in
part, within the coastal zone, the commission shall participate 11n such proceedings
and shall receive from the State Energy Resources Conservation and Development
Commission any notice of intention to file an application for certification of a site
and related facilities within the coastal zone. The commission shall analyze each
notice of intent and shall, prior to completion of the preliminary report required
by Section 210, forwaird to the State Energy Resources Conservaytioo s.td 'evelop.
meat Commission a written report on the suitability of the proposed. tq'and re-
lated facilities specified in'such notice of intent. The commisslon', ,lpo,'t shall
contain a consideration of, and findings regarding, all of the following.:
(1) The edmpatlbility of the proposed site and related' facilities withlithe goaf of
protecting coastal resources. '
(2) The degree' to. which 'the proposed site and related facilities would confilct
with other existing or planned coastal-dependent land uses at or near the site.
(3) The poWntial adverse effects that the proposed site and related facilities
would have on aesthetic values.
(4) The potential adverse environmental effects on fish and wildlife' and their
habitats.
(5) The conformance of the proposed site and related facilities withc certified local
coastal programs in those Jurisdictions which would be affected by any such devel-
ooDmen
(6) The degree to which the proposed site and related facilities could reasonably
be modified so as to mitigate potential adverse effects on coastal resources, minimize
conflict wlith existing or planned coastal-dependent uses at or near the site; and
promote the policies of this division.
(7) Such other matters as the commission deems appropriate and necessary to
carry out the provisions of this division.
(e) The commission may, at its discretion, participate fully in other proceedings
conducted by the State Energy Resources Conservation and Development Commission
pursuant to its powerplant siting authority. In the event the commission partici-
pates in any public hearings held by the State Energy Resources Conservation and
Development Commission, It shall be afforded full opportunity to present evidence
and (examine and cross-examine witnesses.
(f) The State Energy Resources Conservation and Development Commission shall
forward at copy of all reports it distributes pursuant to Sections 25302 and 25306
to the commission and the commission shall, with respect to any report that relates
to t(he coastal zone or coastal zone resources, comment oi such('tl reports, and shall
In its e('lllents include a disncussion of the desirability of partlcular areas within
the coastal zone as designated in such reports for potential powerplalnt developnent.
The commission may propose alternate areas for powerplantt development within the(
coastal zone and shall provide' detailed findings to support the suggested alterna-
tives.
30414.
(a) The State Air Resources Board and local air pollution control districts estab-
lished pursuant to state law and consistent with requirements of federal law are
the principal public agencies responsible for the establishment of ambienlt air quality
and emission standards and air pollution control programs. Neither the commlis-
sion nor any regional commission shall modify any ambient air quality or emis-
sion standard established by the State Air Resources Board or any local air pollu-
tion control district in establishing ambient air qnality or emlission standards.
(b) The State Air Resources Board and any local air plillution, control district
may recomnmend ways in which actions of the commission or any regional cornlils-
sion can complement or assist in the implementation of established air quality pro-
grams.
30415.
The Director of the Office of Planning and Research shall, In cooperation willt
the commission and other appropriate state agencies, review the policies of this
division. If the djitor, 'dete " iilnes tHi t?' effectiV 'impletme$nttion? o; abi:
requires the cooperative and. coordlnfated efforts of several state' a.i et )
�shall, no later than July 1, 1078 and from time to time' therealter ed: .
the appropriate agencies actions that should be taken to mtnlmize potiti 4
cation and conflicts and which could, if taken, better achieve effective
tation of such poliy: -fThe. direetor shall, where appropriate and .a: i.
tlon.with the affected agency, recommend to the Governor and thei4XL t
how the programs, duties, * * * responsibilities, and enabling legtsiato*ffa
any state agency should he changed to better achieve the goals and. poilcleO of.
this division. - .-'

249

30416.
(a) The State Lands Commission, in carrying out Its duties and respoi'ibilitleA as
the state agency responsible for the management of all state lands, including tide
and submerged lands, in accordance with the provisions of Division 6 (eommencing
with Section 6001), shall, prior to certification by the commission pursuant to Chap-
ters 6 (commencing with Section 30500) and 8 (commencing with Section 80TOO) re-
view, and may comment on any proposed local coastal program or 'port master
plan that could nffect state lands. .
(b) No power granted to any local government, port governing body, or speclal
district, inder this division, shall change the authority of the State Lands Com-
mission over granted or ungranted lands within its jurisdiction or change the'rights
and duties of its lessees or permittees.
(c) Boundary settlements between the State Lands Commission and other parties
and any exchanges of land ill connection therewith shall not be a dlevelopment with-
in the meaning of this division.
(d) Nothing in this division shall amend or alter the terms and conditions In any
legislative grant of lands, in trust, to any local government, port governing body.
or special district: provided, however, that any development on such granted lands
shall, in addition to the terms and conditions of such grant, be sulbject to the regula-
tory controls provided by Chapters 7 (commencing with Section 30600) and 8 (com-
lencing with Section 30700).
30417.
(a) In addition to the provisions set forth in Section 4551.5, the provisions of this
section shall apply to the State Board of Forestry.
(b) Within 180 days after January 1, 1977, .the commission shall identify special
treatment areas within tile coastal zone in order to assure that natural and scenic
resources are adequately protected. The commission shall forward to the State
Boardl of Forestry maps of the designated special treatment areas together with
specific reasons for such designations and with recommnendations designed to as-
sist the State Board of Forestry in adopting rules an(l regulations which adequately
prote(t the natural and scenic qualities of such special treatment areas.
30418.
(a) PIursuant to Division 3 (commencing with Section 3000), the Divisioli of Oil
and Gas of the Department of Conservation is the princilpal state agency responsible
for r(,gulating the drilling, operation, maintenance, and abandonment of all oil, gas,
and geothermal wells in the state. Neither the comnlmission, regional commlssion,
local governmenllt, port governing body, or special district shall establish or Inlpose
sueh regulatory controls that duplica:te or exceed controls established by the Dlvi-
sion of Oil and Gas pursuant to specific statutory relluirements or authorization.
This section shall not he construed to limit in any way, except as specifically
provided, the regulatory controls over oil and gas development pursuant to Chapters
7 (comllencing with Section 30600) and 8 (comlnlhncing with Section 30700).
(b) The l)ivisiol of Oil and Gas of the l)epartmelt of (Conservation shall co
operate with the commission by providing necessary data and technical expertise
regarding proposed well operations within the coastal zone.

CHAPTER 6. IMPLEMENTATION .

ARTICLE 1. LOCAL COASTAL PROGRAM *,
30500.
(a) Each local government lying, ill whole or in part, within the coastal zone shall
prepare a local coastal program for that portion of the coastal zone within Its juris-
diction. However, any 'such local government may request the commissli6i-'tW pre-
pare a local coastal program;. or a portion thereof for the local governmeot>.;pro.
vilded, such request is submitted to the commission, in writing, not later tbihflJhly
1, 1977. Each local coastal program prepared pursuant to this *hapteriabi".~on-
tain a specific public access component to assure that maximum public access the
coast and public recreation areas is provided.
(b) Amendments to a local general plan for the purpose of developing a:,ceFtifled
local coastal program shall not constitute an amendment of a general plan for
purposes of Section 65361 of the Government Code.
(c) The precise content of each local coastal program shall be determined liy'the
local government, consistent with Section 30501, ill fall consultation with the com-
mission and an appropriate regional commission, and with full public participation.
30501. ' ":
The commission shall, within 90 days after January 1, 1977, adopt,' afte;phblti:
hearing, procedures for the preparation, submission, approval, appeal; certificltion,
and amen dment of any local coastal program, including, but not limited to, all of
the following: . ,
(a) A common methodology for the preparation of, and tile determlnatlon of the
scope of, the local coastal progrmuns, taking into account the fact that local govern-
ments have differing needs and characteristics.
(b) A schedule for the processing of all local coastal programs and specific
guidelines to be followed by each regional commission in establlishing, within 30
days after thie commission has adopted such guidelines, its own schedule for proces-
sing local coastal programs wvithin its region; however, ill no event shall a local
coastal programil that is prelpared by a local government be required to be submitted
to any regional commission prior to July 1, 197S, or later than January 1, 1980.

250

LoeCal coastal programs or portions thereof, prepared by the commlsslon'shall be
completed not later than July 1, 1990, and certified not later than December 1, 1980.
(e) Ilecommended uses that are of more than local importance that should be con-
sidlered in the preparation of local coastal programs. Such uses mamy be listed gener-
ally or thelocollmission may, from time to time, recomnnlelnd specific Uses for con-
sidleration by any local government.
30502.
(a) The commission, in consultation with affected local governmeatat*d,'thW
appropriate regional commissions, shall, not later than September 1, '1',: after
public hearing, designate sensitive coastal resource areas within the coastal zone
where the protection of coastal resources and public access requires, in addition
to the review and approval of zoning ordinances, * * * the review aiar ap-
proval by the regional commissions and commission of other implementing actions.
(b) The designation of each sensitive coastal resource area shall be based Upon
a separate report p arpared and adopted by the commission which shall contain
all of the following: .
(1) A description of the coastal resources to be protected and the reasons why
the area has been designated as a sensitive coastal resource area.
(2) A specific determination that the designated area is of regional or statewide
significance.
(3) A specific list of significant adverse impacts that could result from develop-
ment where zoning regulations alone may not adequately protect coastal resources
or access.
(4) A map of the area Indicating its size and location.
(c) In spnsitive coastal resource areas designated pursuant to this section, a
local coastal program shall include the implementing actions adequate to protect
the coastal resources enumerated in the findings of the sensitive coastal resource
area report in conformity with the policies of this division.
30502.5.
The commission shall recommend to the Legislature for designation by concur-
rent resolution those sensitive coastal resource areas designated by the commls-
sion pursuant to Section .30502. Recommendation by the commission to the Legis-
lature shall place the described area in the sensitive coastal resource area category
for no more than two years, or a shorter period If the Legislature speclfically
rejects the recommendation. If two years pass and a recommended area has
not been designated by concurrent resolution, it shall no longer be designated as a
sensitive coastal resource area. Such a concurrent resolution may not be held
in committee, but shall be reported from committee to tile floor of each respec-
tive house with its recommendation within 60 days of referral to committee.

During the prepsfatlln,. aPproval, rtfiop' tand-t imendmeat, '; icl
coastal program, the public, as well as all affected governmental agenlej gog
special districts, shall be provided maximpnr oppprounitles to particlpatle .rior to
sullbmlssion. ofa local coastal program for approval, local goyernameni. ' O .old
a pubile hearing or hearings on that portion of the program whlh. :'b t,,en
subjected to public hearings within four years of such submission. . ;
30504. '. . ','!'rl.,
Special districts, which issue permits or otherwise grantapproval for devoelpment
or which conduct development activities that may affect coastal resources, shall
submit their development plans to the affected local government pursuant to Section
65401 of the Government Code. Such plans shall be considered by the affected local
government in the preparation of its local coastal program. ' r '

ARTICLE 2. PROCEI)URE FOR PREPARATION, APPROVAL, AND
CERTIFICATION OF LOCAL COASTAL PROGRAMS
30510.
Consistent with the provisions of this chapter, a proposed local coastal program
may be submitted to a regional commission, if both of the following are met:
(a) It is submitted pursuant to a resolution adopted by the local goveirunent, after
pulblie hearing, that certifies tile local coastal program is intended to be carried out
in a manner fully in conformity with this division.
(b) It contains, in accordance with guidelines established by the commission,
materials sufficient for a thorough and complete review.
30511. ' '
Local coastal programs shall be submitted in accordance with tile schedule es.
tablished pnursuant to subdivision (b) of Section 80501. At the option of tile local
government, such program may be sutbmitted and processed In any of the following
ways:
(a) At one time, in which event the provisions of Section 30512 with respect to
time limits, resubmission, approval, and certification shall apply; pro.lded, how-
ever, that the zoning ordinances, zoning district maps, and, if required, other imple-
menting actions included in the local coastal program shall be approved and certl-
fled pursuant to the standards of subdivisions (a) and (f) o_f Section 30513.

251

(b) II two phases, in which event, the land use plans shall be processed first
pllrsuant to the provisions of Section 30512, and the zoning ordinances, zoning
district maps, and, if required, other implementing actions, shall be l:roessedl
thereafter purstlant to the provisions of Section 30513.
(c) In separate geographic units consisting of less than the local government's
jurisdiction lying within the coastal zone, each submitted pursuant to s!ubdvlislon
(a) or (b); provided, that the commission finds that the area or areas proposed
for separate review can be analyzed for the potential cumulative impacts of de-
veloplment on coastal resources and access independently of the remainder of the
affected Jurisdiction.
30512. '
(a) The land use plan of a proposed local coastal program shall be submitted to
the regional commission. The regional commission shall, within 90 days after
the submittal, after public hearing, either approve or disapprove, In *hole or in
part, the land use plan. If the proposed land use plan is not acted upon within
tile 0-dlay period, it shall be deemed approved by tilhe regional comiission,
(Ib) VWhere a land use plan is disapproved, ill whole or in part, the regional conm-
mission shall provide a written explanlation and may sugge.st ways In which to
modify the disapproved provisions. A local government may revise a disapproved
land use plan and resubmit the revised version to the regional commission or It
may appeal either the disapproved portion or revised version thereof to the com-
mission. Where the proposed land use plan is approved, in whole or in part, the
land use plan or the approved portion thereof shall, within 10 wolv'..
such approval, be forwarded by the regional commission to the eozlri,'iJ fer~
tificatlon. :' . . , : ,, . ;
(c) The commission shal;' iiot less than 21 days nor more than 4$'da
land use planfihas been si;nilitted or appealed. to It, determine by i~/l ote
after a publil'hearfig,, whether specific proivislons of the land nse n a
substantial issue as to cohformity with the policies of Chapter 3 (conimnenD With
Section 30200). If the commission finds no substantial issue, the decision f the
regional commission shall be final, and In the case of regional Ceodmiulon ap-
provals, the land use plan shall be deemed certified. If the commIssion deter.
mines a substantial Issue is raised, it shall, following public hearing and within
60 days from receipt of the land use plan, either refuse certification or .certify,
ill whole or in pIart, the land use plan. ! ,
(d) If the commission refuses certification, in whole or in part, it shall send a
written explanation for such action to tile appropriate local government and re-
gional commission. A revised land use plan may be resubmitted directly to the
commllission for certification.
(e) A regional commission shall approve and the commission shall certify/ or the
commission shall approve and certify where there is no regional commission,.a land
use plan, or apy amendments thereto, if such commission finds that a, land use
plan meets the requirements of, and is in conformity with, the policies of Chapter :3
(commencing with Section 30200) of this division.
30513. -
The local government shall submit to the regional conunlission and the commission
the zoning ordinances, zoning district maps, and, where necessary, other imple-
menting actions which are required pursuant to this chapter.
(a) If within 00 days after receipt of the zoning ordinances, zoning district
maps, and other implementing actions, the regional commission, after public hear-
ing, has not rejected the zoning ordinances, zoning district maps, or other Imple-
menting aetions,,they shall be deemed approved. A regional commlission may only
reject zoning ordinances, zoning district maps, or other implementing actions on
the grounds that they do not conform with, or are inadequate to carry 'out, the
provisions of the certified land use plan. If the regional commission rejects the
zoning ordinances, zoning district maps, or other implementing actions,.it shall give
written notice of the rejection specifying the provisions of land use plan with
which the rejected zoning ordinances do not conform or which It finds will not
be adequately carried out together with its reasons for the action taken.
(b) The local government may revise and resubmit the rejected zoning ordi-
nances, zoning district maps, or other implementing actions to the regional com-
mission or It may, within 10 days after receipt of a notice of such rejection, ap-
peal to the commission.
(c) Any aggrieved person may appeal to the commission within 10 working days
after approval or rejection of the zoning ordinances, zoning district maps, or other
implementing actions by a regional commission or after the zoning ordinances,
zoning district maps, or other Implementing actions are deemed approved due to
the failure of the regional commission to act.
(dl An appeal pursuant to subdivision (b) or (c) shall specify the aetin which
Is being appealed, the specific provision of the certified land use plan with which
the zoning ordinances, zoning district maps, or other implementing actions either
conform or do not conform or which will or will not be adequately carried out, and
the appellant's reasons for such position.- The commission, by majority vote of
those present, may refuse to hear an appeal which it determnllnes raises no sub-
stantill issue. If the commission refuses to hear an appeal, the action of the re-
gional commission shall be final.
(e) In the absence of an appeal pursuant to subdivision (b) or (c), the commis-
sion, by a majority of those present, may, within 30 days after a zoning ordinance,
zoning district map, or other inlplementing action has been approved by the re-

252

gional commission, determine that a substantial issue is presented as. to. coa-
formity with or adequacy to,carry out the certified land use plani. ,':
(f) If within 60 days. after Teceipt of an appeal. pursuant to br
(c) or within 3IX days after a determination to teview pursuant to Ll�1;s~'qII te),
the commis4ion, after public hearing, :has not ireected the zoning or4ti iusalzon-
ing district maps, or other implementing ections, such zonlng.ordinazlegrq ;ziihing
district maps, or other Implementing actions shall be deemed approved. T.Ihe,com-
mission may only reject a zoning ordinance, zoning district mapl, or ioth(,,jpple-
mentilg action on the grounds set forth in subdivision (a) and, if It. doe;. oS.I, Bahll
give written notice as provided in subdivision (a). The local governsmntUnms, re-
vise and resubmil: a rejected zoning ordinance, zoning district. map, or other im-
plementing action to the regional commission or directly to the commission Wiiae-
cordance with the provisions of this section.
30514. . � '*
(a) A certified local coastal program and all local implementing ordinances, reg-
ulations, and other actions may be amended by the appropriate local government
but no such amendment shall take effect until it has been certified by the comn-
mission. , ;
(b) Any proposed amendment of a certified local coastal program shalltb' sab-
mitted to, and processed by, the appropriate regional commission and the commis-
sion, or the commission where there is no regional commission, in accordance
with the provisions of Sections 30512 and 30513.
(c) The commission shall, by regulations, establish a procedure whereby pro-
posed amendments to a certified local coastal program may he reviewed and deq-
ignated by the executive director of the commission as being minor In 'nature.
Proposed amendments that are designated as minor shall not be subject to the
provisions of Sections 30512 and 30513 and shalll take effect on the 10th working
day after sueh designation. Amendments that allow changes in uses shall not be
designated as minor.
(d) For the purpose of this section, an "amendment of a certified local coastal
program" includes, but Is not limited to, any action by the local government which
authorizes a use of a parcel of landl other than that (lesigIlated in the qertlfied
local coastal program as a permitted use of such parcel.
30515.
Any person authorized to undertake a public works project or proposing an
energy facility development may request any local government to amend Its certi-
fied local coastal program, if the purpose of the proposed amendment is to meet
public needs of an area greater than that includled within suchll certified local
coastal plrogramn that had not been anticipated by the person making the request
at the time the local coastal program was before the commission for certification.
If, alter review, tile local government (lettermines that the nlendment requested
would be in conformity with the policies of this divislon, it may amend It certi-
fied local coastal program as provided in Section 30514.
If tilhe local governmeillnt loes not alelind its locall colastal program, such per-
son mllay file with the commuission a retltlest for Ilenldlnient whlich shall set fortl
the reaso(ns wlhy the proposed anlendlllment is necessury luln how such anledmet
is in conformity with the policies of this division. The local governmeCt shall be
provided all opportunlity to set forth the 'reatsonls for its actioll. The commisslon
may, after public hearing, approve and certify the proposed amendnent if it flnds,
after a careful balancing of social, economic, and environmental effects, that to
do otherwise would adversely affect the 1public vwelfare, that :a public need of an
area greater than that included within the certified local coastal program wouldl
be met, that there is no feasible, less environmentally damaging alternative way to
meet sucll need, and that the proposed amendment is in conformity withthe poli-
cies of this division,
30516.
(a) Approval of a local coastal program shall not be' withheld beealser0f tbe In-
ability of the local 'goVernment 'to financiallp. upport or implement aliy.pbllcy or
policies contained in this division; provided, however, that this shall aft'trequlre
the approval-of a local coastal program allowing development not in nfofrmity
with the policies in ChapterS3 (commencing with Section 80200).
(b) Where a certifled port master plan has been incorporated in a ToWl. coastal
prograun in accordance with Section 30711 and the local coastal program. is dis-
approved by tile reglonll] commissioh or the commission, such dlsapproVaJi,shill not
apply to hlie certified port master plan. :
30 517. ,
The commission or the regional commission may ektend, for a period. i'ot to
exceed one year, except as provided for ill Section 30518, any time llimtation es-
tablished by this chapter for good cause.
30518.
If a local coastal program has not been certified and all Implementing. devices
become effective on or before January 1, 11)81, the commis;ston may take any of
the following actions, if it finds that, in the absLence of a certified local coastal

253

program, any new development in the coastal. zone would not be in cnaformity
within the jurisdiction of the affected local government and would be tinonslstent
with the policies of this division:
(a) Prohibit or otherwise restrict, by regulation, the affected local government
from issuing any permit or any type of entitlement for use for any development
with the coastal zone, or any portion thereof, of such local government.
(b) By regulation, extend the permit requirements of Chapter 7 (commencing with
Section 30600) by requiring a permit from the commission for any development
within any area of the coastal zone under the jurisdiction of the affected local
government.

30519.
Except for appeals to the commission, as provided in Section 30603, after a local
coastal program, or any portion thereof, has been certified and all implementing
actions within the area affected have become effective, the development review
authority provided for in Chapter 7 (commencing with Section 30C)0) shall no longer
be exercised by the regional commission or by the commission where there is no
regional cornmmission over any new development proposed within the area to which
such certified local coastal programl, or any portion thereof, applies and shall at:
that time be delegated to the local government that is implementing such local
coastal progr:am or any portion thereof.
(b) Subdivision (a) shall not apply to any development proposed or undertaken
on any tidelands, submerged lands, or on public trust lands, whetherfilled or uln-
filled, lying within the coastal zone, nor shall it appy to any developiexit pro-
posed or undertaken within parts covered by Chapter 8 (commencing with See-
tion 30700) or within any state university or college wvithin the constal zone; how-
ever, this section shall apply to any development proposed or undertakern by a
port or harbor district or authority on lands or waters granted by the Legislature
to a local government whose certified local coastal program includes the specific
development plans for such district or authority.
30519.5.
(a) The commission shall, from time to time, but at least once every five years
after certification, review every certified locat coastal program to determine wheth-
er such program is being effectively implemented in conformity with the policies
of this division. If the commission determines that a certified local coastal pro-
gram is not being carried out In conformity with any policy of this division it shall
submit to the affected local government recommendations of corrective actions that
should be taken. Such recommendations may include recommended amendments
to the affected local government's local coastal program.
(b) Recommendations submitted pursuant to this section shall be reviewed by
the affected local goveriment and, if the recommended' action'lb not takeeid'tie local
government shall, within one year of such submissloio, forward to the'& timim sslon
a report setting forth its Veaon's fob not takig'the-recdmmended actleoii.'hbe 'jom-
mission ghallKxeview such teport and, where appliopriate, report t0'the l.-gsature
and recomnmend legislative action necessary to. assure effective implementati. of
the relevant policy or policies of this division, , . - . ' "

If the application*'of tiny locAl coastal program 'or part' thereof'"1'i olblited or
stayed by 'any court, the p)ermit authority provided for In Chaliter 7T(ciutendeng
with Section 30600)-shall be reinstated in the regional commission 'or'iii tie com-
mission where there is no regional commissions The reinstated permit authority
shall apply as to any development which would be affected by the -pDi'bltion or
stay. ; ; -
30521.
The Legislature hereby finds and declares that the early review of a ilimitd tnUnm-
ber of local coastal programs may provide valuable experience for future refiw and
processing of local coastal programs and that in consideration of the early com-
mitments made by the involved local governments, any local coastal iprogram pre-
pared for that portion of a local jurisdiction designated as a pilot project arga by
the California Coastal Zone Conservation Commission between August 3I, 1976,
and October 31, 1976, shall receive priority from the regional commission and the
commission by being processed ahead of other local coastal programs pursuant to
the'provisions of this chapter. Any such pilot project may be reviewed'and ap-
proved by the appropriate regional commission and the commission withouit being
subject to the procedures required by Section 30501; provided, that the proposed
local coastal program, or portion thereof, is in conformity with the pollcl1e of Chap-
ter 3 (commencing with Section 30200), serves as a useful model for future'review
of local coastal programs, and the regional commission has commenced formal re-
view of the land use phase of a local constal program by June 1, 107.
30522.
'Nothing in this chapter shall permit the commission to certify a local coastal
program which provides for a lesser degree of enviromnental protection than that
provided by the plans and policies of any state regulatory agency.

254

CHAPTER 7. DEVELOPMENT CONTROLS
ARTICLE 1. GENERAL PROVISIONS
30600.
(a) In addition to obtaining any other permit required by law from any local
government or from any state, regional, or local agency, on or after January 3, 1977,
any person wishing to perform or undertake any development in the coastal zone,
other than a facility subject to the provisions of Section 25500, shall.obtain a
coastal development permit.
(b) Prior to certification of its local coastal program, a local government may,
with respect to any development within its area of jurisdiction in the coastal zone
and consistent with the provisions of Sections 30604, 30620, and 30620.5, establish
procedures for the filing, processing, review, modification, approval, or denial of a
coastal development permit. Such procedures may be incorporated and made a
part of the procedures relating to any other appropriate land use developmenit per-
mit issued by the local government. A coastal development permit from a local
government shall not be required by this subdivision for any development on tide-
lands, submerged lands, or on public trust lands, whether filled or unfilled, or for
any development by a public agency for which a local government permit Is not
otherwise required.
(c) If prior to certification of its local coastal program, a local government does
not exercise the option provided in subdivision (b), or a development is not subject
to the requirements of subdivision (b), a coastal development permit shall be oel
tanned from a regional commlislon, 'the commission ori appeal, or the . 'om!issi9n
vhere there is no.regional commission.
-di) After certification of its local coastal program, a coastaI devel eqlAt per-
mit shall be obtained from tle local government as provided for in Secti .lloaI9.
30601. ' i' a' * nt a s ro'
Prior to certification of the local coastal program and, where' applicable, it addi-
tion to a permit from local government pursuant to subdivision (b) of Section 80600,
a coastal development permit.shall be obtained from the regional commlsaton, or
the commission on appeal, or the commission where there is no regiqnl conli..s-
sion, for any of the following: j .. :: ; .: _,
(1) Developments between the sea and the first public road parallelingthe sea
or within 800 feet of the Inland extent of any beach or of the mean high tide line
of the sea where there is no beach, whichever is the greater distance.
(2) Developments not included within paragraph (1) located on tidelands, sub-
merged lands, public trust lands, within ]00 feet of any wetland, estuary, stream,
or within 300 feet of the top of the seaward face of any coastal bluff.
(3) Any development which constitutes a major public works project or . major
energy facility.
30602.
(a) Prior to certification of its local coastai program, any action taken by a lo-
cal government on a coastal development permit application may be appealed by
the executive director of the regional commission, any person, including the appli-
cant, or any two members of the regional commission or the commission to the re-
gional commission. Such action shall become final after the 20th working day
after receipt of the notice required by subdivision (c) of Section 30620.5, unless an
appeal is filed within that time.
(b) Any action taken by a regional commission on a coastal development permit
application pursuant to this section or Section 30600, may be appealed to the com-
mission, in accordance with the provisions of subdivision (a) of Section 30625, Such
action shall become final after the 10th working day, unless an appeal Is filed
within that time.

(a) After certification of its local coastal program, an action taken by a local
government on a coastal development permit application may be appealed to the
commission for any of the following:
(1) Developments approved by the local government between the sea and the
first public road paralleling the sea or within 300 feet of the inland extent of any
beach or of the mean high tide line of the sea where there is no beach, wicllever
is the greater dlistance. .:,,
(2) D)evelopmeunts alpplroed by the local government not included wltWl , para-
graph (1) of this subdivision loca:ted on tidelands, submerged lands, publlictrust
lands, within 1(H) feet. of any wetllnd, estliry, stream, or wlthin 300 feetsd the
top of the svaw:ard face of any coastal blllff.
(3) l)evCelopmellts approved by the local government not included, ;ltojlp para-
graph (1) or (2) of this subdivision locatted in a sensitive coastal lzr' i'~tiarea
if, tIh allegation on. appeal is tllit the development is not In conformlty :'the
imPllmenlting actions of the cerltfied local e(onstal program.
(4) Any ldevellolnmentI appr(ovtd by a coastul county that is not dlesignated a, the
princllpal permitted use under the zoning ordinance or zening district -lap ap-
proved pursuant to Chapter (; (commencing with Section 30500).
(5) Any development whictl constitutes a major publle works project or a major
energy facility.
255

(hb) The grounds for an appeal pursuant to paragraph (I) of subdivltion' (a) shall
be limited to the follo wing:
(1) The development fails to provide adequnte physical access orlutb :otr pil-
vate colnlmercial use or interferes with such uses.
(2) Thle development fails to protect public views from any public' road or from
a recreational area to, and along, the coast.
(3) The developlment is not compatible witll thle established physical s:eal8 of the
area.
(4) The development may significantly alter existing natural landforrti.' "
(5) The development does not comply with shoreline erosion and geolo0le set-
back reqauirements.
(e) Th' stallndard of review for any development reviewed purnuant o ;subdlvl-
sion (a) * * * (3) shall be nI conformllty with the implementing actions of thle
certified local coastal program. -. ' i! " ::
Suleh action shall becone final after the 10tll working day, unless an ppeal is
filed within that time.
30604.
(a) Prior to certification of the local coastal program, a coastal development per-
mit shall Nbe issued ift the issuing agency, or the commission on appeal, finds that
the proposed development is In conformity with the provisions of Chapter 3 (coin-
mencing with Section 30200) of this divisiop and that the permitted developmenl
will not prejudice the ability of the local government to prepare a local eoastal
program that is in conformity with the provisions of Chapter : (commencirig with
-Section 30200).
(b) After certification of the local coastal program a coastal development. ermit
shall be issued if the issuing agency or the commission on.nappeal figds that the
proposed development Is in conformity with the certified local coastal program.
(c) Every coastal development permit issued for any development 'between the
nearest public road and the sea or the shoreline of any body of water located within
the coastal zone shall Include a specific finding that such development 's In con-
formilty with the public access and public recreation policies of Chapter!& (com-
mencing with Section 30200). ;'
(d) Nothing in this division shall authorize the dlenial of a coastal development
permit on grounds that a portion of the proposed development not within the coastal
zone will have adverse environmental Impacts outside the coastal zone; provlded,
however, that the portion of the proposed development within the coastal zone' shall
meet the requirements of this chapter.
30605.
To promote greater efficiency for the planning of any public works or state uni-
versity or college development projects and as an alternative to project-by-project
review, plans for public works or state university or college long-range land use
development plans may be submitted to the regional commission and the commission
for review In the same manner prescribed for the review of local coastal programs
as set forth in Chapter 6 (commencing with Section 30500). If any such plan fol
public works or state university or college development project is submitted prior
to ceertification of the local coastal programs for the jurisdictions affected by the
proposed public works, the commission shall certify whether such proposed' plan Is
consistent with the provisions of Chapter 3 (commencing with Section 30200),. The
commission shall, by regulation, provide for the submission and distribution to the
public, prior to public hearings on the plan, detailed environmental information suf-
ficient to enable the commission to determine the consistency of the plans with the
policies of this division. If any such plan for public works Is submitted after:the-
certification of local coastal programs, any such plan shall he approved by the com-
mission only if it finds, after full consultation with the affected local govertments,
that the proposed plan for public works is in conformity with certified local coastal
programs in jurisdictions affected by' the proposed public works. Each state Uni-
versity or college shall coordinate and consult with local government in the prep-
aration of long-range development plans so as to be consistent, to the fullest extent
feasible, with the appropriate local coastal program. Where a ,plan .Jo$t'iublic
works or state university or college development project has been certitled tI~e
commission, any subsequent review by the commission of a speclfice prioit,/on-
talned In such certified'plin shall he limited to Imposlng condltions eoislMltZltiWlth
Sections 30607 and 30607.1. A certified long-range development plan may be a'mend-
ed by the state university or college, but. no such amendment shall take effiet until
It has been certified by the commission. Any proposed amendment shall be sub-
mitted to, and processed by, the regional commission or the commission in tihe sanme
manner as prescribed for amendment of a local coastal program.
30606 - . .
Irlor to the 'conmencemerit' of any development puisuant to Se tii t
public agency proposing the public works project, or state univiiltg or' dtlege,
shall notify the commission and other interested persons, organlzatloiad 11 gov-
ernmental agencies of the impending development and provide data to 'sl4tWthat
it Is consistent with the certified public works plan or long-range development plan.
No development shall take place within 30 working days after such notice.

256

30607.
Any permit that is issued or any development or action approved on appeal, pur-
suant to this chapter, shall be subject to reasonable terms and conditions in' order
to ensure that such development or action will be in accordance with the provisions
of this division.
30607. 1.
Where any dike and fill development is permitted in wetlands in conformity with
this division, mitigation measures shall include, at a minimum, either acquisition
of equivalent areas of equal or greater biological productivity or opening up equiva-
lent areas tb tidal action: provided, however, that if no appropriate restoration
4h site is available, an in-lieu fee sufficient to provide an area of equivalent produc-
tive value or surface areas shall be dedicated to an appropriate public agency, or
such replacement site shall be purchased before the dike or fill development may
proceed. Such mitigation measures shall not be required for temporary or short-
term fill or 'diking; provided, that at bond or other evidence of financial responsi-
bility is provided to assure that restoration will be accomplished in the shortest
feasible time.
30608.
(a) No person who has obtained a vested right in a development prior to the
effeclive ldate of this division * * * or who has obtained a permit from the
California Coastal Zone (Conselarltion Commission pursuant to the Californin
Coastal Zonll Conservation Act of 1972 (commencing with Section 27000) 'shall be
required to secure approval for the development pursuant to this division; provid-
ed, however, that no substantial change may be made in any such development.
Without prior approval having been obtained under this division. * * *
30609.
Where, prior to January 1, 1977, a permit was issued and expressly made subject
to recorded terms and conditions that are not dedications of land or interests in
land for the benefit of the public or . public agency pursuant to the California
Coastal Zone Conservation Act of 1972 (commencing with Section 27000), the owner
of real property which is the subject of such permit may apply for modification
or elimination of the recordation of such terms and conditions pursuant to the pro-
visions of this division. Such application shall be made in the same manner as a
permit application. In no event, however, shall such a modification or elimina-
tion of recordation result in the imposition of terms or conditions which are more
restrictive than those imposed at the time of the initial grant of the permit. Unless
modified or deleted- pursuantrto thls section;, any condition imposed on;, a-permit
issued pursuant to6 the former Californla Cdastal Mttne- Conservation A&e4Of -1a72
(commencing with Section 27000) shall remain in full force'and 'effectig. i'
30610. : .. .
Notwithstanding any provision in this division to the contrary, no coastal de-
velopment permnit shall be required ptlusuant to this chapter for the' following
types of development andl in the following areas:
(a) Improvenments to existing single-family residences; provided, however, that
the commission shall specify, by regulhttion, those classes of development which
involve a risk of adverse environmental effect and shall roquire that a coastal
development permit be obtained under this chapter.
(b) Maintenance dredging of existing navigation channels or moving !dredged
material from such channels to a disposal area outside the coastal zone, pursuant
to a permit from the United States Army Corps of Engineers.
(c) Repair or maintenance a' t'vities that d-b not result In 'iidditioi- to- or 'ei:
largement or expansion of, the object of such repair or maintenance :aetivltlesi
provided, however,.' that If the commission determines that 'ertfin "Ltr'aitlriary
methods of repair and maintenance that involve a 'risk -of substantial adverse l-
viromnmental impact, it shall; by regulation, require that- a permit be obtained nuder
this chapter.
(d) Any categor' of'development, or any, category of development within ia spe-
cifically defined geographic :area, that the commission, ,by regulation, 'after publie
hearing, and by two-thirds vote of its + *' * appointed members, has described
or identified and with respect to %which the commission has found that there is
no potential for any 'significant adverse effect, either'ldividually or cilmulatlvely,
on coastal resources- or on public access to, or along, the coast and' that such
exclusion will not impair the ability of local government to prepare a local coastal
program. .- . ' " -
(e) The installation, testing, and placement in service or the replacement of any
necessary utility connection between aln existing service facility and any develop-
ment approved pursuant to this division: provided, that the commission may,
where necessary, require reasonable conditions to mitigate any adverse. mpacts
on coastal resources, including scenic resources. * * *

257

30610.5.
Urban. land areas shall, pursuanlt to the provisions of this section, be excluded
from the permit provisions of this chapter.
(a) Upon the request of a local government, an urban land area, as specifically
Identified by such local government, shall, after public hearing, be excluded by the
commission from the permit provisions of this chapter where both of the following
conditions are met:
(1) The area to be excluded is either a residential area zoned and developed to at
density of four or more dwelling units per acre on or before January 1, 1977, or it
commercial or industrial area zoned rand developed for such use on or before Jan-
uary 1, 1977.
(2) The commission finds both of the following:
(i) Locally permitted development will be infilling or replacement and will he
in conformity with the scale, size, and character of the surroundling community.
(Ii) There is no potential for significant adverse effects, either individually or
cumulatively, on public access to the coast or on coastal resources from any locally
permitted development; provided, however, that no area may be excluded uIless
more than 50 percent of the lots are built upon, to the same general density or
Intensity of use.
'(b) Every exclusion granted under subdivision (a) of this section and subdivision
(d) of Section 30610 shall be subject to terms and conditions to assure that no sig-
nificant change in density, height, or nature of uses will occur without further
proceedings under this division, and an order granting an exclusion under subdivi-
sion (d) of Section 30610, but not under subdivision (a) of this section may be re-
voked at any time by the commission, if the conditions of exclusion are violated.
Tide and submerged htlnd, beaches, and lots immediately adjacent to the inlantl
extent of any beach, or of the mean high tide line of the Sea where there is no
beach, and all lands and waters subject to the public trust shall not be excluded
under either subdivision (a) of this section or subdivision (d) of Section 30610.
80611. . . - -
When immediate action by a person;or public' agency performing a. publlq service
if required to protect life and public. property from imminent danget,:ot to re-
store, repair,. or maintain public works, utilities, or!,ervices destroyed, damaged,
or interrupted by natural disaster, serious accident, or in other cases of emergency,
the requirements of obtaining any permit under this division may be waived upon
notificatlon of the execimtii'e director of the otiniissloni of the type'anid locaton of
the work within three days of the disaster or' discovery of the danger, whichever
occurs first. Nothing in this section authorizes permanadrit eretliori nof" tructures
valued at more than twenty-fiV'e thousand dollars ($25,000). .

ARTICLE 2.' DEVELOPMENT 'CONTROL PROCEDURES ::
30620.
(a) 3By January 30, 1977, the commission shall, consistent with the provisions of
this chapter, prepare interim procedures for the submission, review, and appeal of
coastal development permit applications and of claims of exemption. Such pro-
cedures shall include, but are not limited to, the following:
(1) Application and appeal forms.
-(2) ItReasonable provisions for notification to the regional commission, the eommnis-
sion, and other interested persons of any action taken by a local government pur-
suant to this chapter, in sufficient detail to assure that a preliminary review of
such action for conformity with the provisions of this chapter can be made.
(3) Interpretive guidelines designed to assist local governments, the regional com-
missions, the commission, and persons subject to the provisions of this chapter in
determining how the policies of this division shall be applied in the coastal zone
prior to certification of local coastal programs; provided however, that such guide-
lines shall not supersede, enlarge, or diminish the powers or authority of any re-
gional commission, the commission, or any other public agency.
(b) Not later than May 1, 1977, the commission shall, after public hearing, adopt
permanent procedures that include the components specified in subdivision (a) and
shall transmit a copy of such procedures to each local government within the coastal
zone and s)anll make them readily available to the public. The commission may
thereafter, from time to time, and, except in cases of emergency, after public hear-
ing, modify or adopt additional procedures or guidelines as it deems necessary to
better carry out the provisions of this division.
(c) The commission may require a reasonable filing fee and the reimbursement
of expenses for the processing by the regional commission or the commission of any
application for a coastal development per!mit under this division. The funds reciveld
under this subdivision shall be expended by the commission only when appropriated
by the Legislature.
30620.5.
(a) A local government may exercise the option provided in subdivision (b) of
Section 30600; provided it does so for the entire area of its' urisdicetion within
tile coastal zone and after it establishes procedures for the issuance of coastal de-
velopnnnt permits. Such procedures shall incorporate, vhere applicable, the in-
terpretive guidelines issued by the commission plursuant to Section 30620.

258

(b) If a ',cail government elects to exercise the option provided ill subdivision (bi
of Setetionl :3()00, t:he local governmlent shall, by resolntion adopted by the govern-
ing lody of such local government, notify the appropriate regional commission and
the commlission and shall take approlpriate steps to assure that the public is proper-
ly notified of such action. The provisions of subdivision (b) of Section 30000 shall
take effect, and shall be exercised by the local governmlent on the 10th working day
after the (late on which the resolution required by this subdivision is adopted.
(c) Every local government exercising the option provided In subdivision (b) of
Section 300(4), shall within five working days notify the appropriate regional com-
mission andt any person who, in writing. has reouested such notification, In the man-
ner plrescribed by the commission pursuant to Seftion 30620, of any cokstal develop-
ment permit it issues. -
(d) Within five working days of receipt of the notice required by subdivision (c),
the executive director of.the regional commission shall post, at a conspicuous location
in the regional.commission's office, a description of the.coastal development permit
issued by the lodeal government. Within, 13 working days of receipt. of, such notice,
the executive director shall, in the manner prescribed by the commission pursuant to
subdivision (a) of Section 30620,. provide notice of the locally issued coastal develop-
ment permit to members of the regional commission, and the commission.
30620.6.
The commission shall, not later than August. 1, 1978, and after public hearing,
adopt public notice and appeal procedures for the review of development projects
appealable pursuant to Sections 30603 and 30715. The commission shall send copies
of such procedures to every local government within the coastal zone and shall make
them readily available to the public.
3062 1.
The regional commission or the commission shall provide for a de novo public
hearing on applications for coastal development permits and any appeals brought
pursuant to this division and shall give to any affected person a written public
notice of the nature of the proceeding and of the time and place of the public hear-
ing. Notice shall also be given to any person who requests, in writing, such notifica-
tion. A hearing on any coastal development permit application or an appeal shall
be set no earlier than 21 days nor later than 42 days after the date on which the
application or appeal is filed with the regional commission or the commission.
30622.
A regional commission or the commission shall act upon the coastal development
permit application or an appeal within 21 (lays after the conclusion of the hearing
pursuant to Section 30621. Any action by a regional commission shall become final
after the 10th working day, unless an appeal is filed with the commission within such
time.
30623.
If an appeal of any action on any development by any regional commission, allny
local government, or port governing body is filed with the regional commission or
the commission, the operation and effect of such action shall be stayed pending a
decision on appeal.
30624.
The commission shall provide, by regulation, for the issuance of coastal develop-
ment permits by the executive director of the commission or any regional corommis-
sion without compliance with the procedures specified in this chapter in cases of
emergency, other than an emergency provided for under Section 30611, or for im-
provements to any existing structure not in excess of twenty-five thousand dollars
($25,000), and any other developments not in excess of twenty thousand dollars
($20,000). Such permit for nonemergency development shall not be effective until
after reasonable public notice antl adequate time for the review of such Issuance has
been provided. If any two members of the regional commission or the comnmission
so request, at the first meeting following the issuance of such permit, such issuance
shall not be effective, and, instead, the application shall he set for a public hearing
pursuant to the provisions of this chapter.
No monetary limitations shall be required for emergencies covered by the provi-
sions of this sectionl
30625.
(a) Except as otherwise specifically provided il subdivision (a) of Section 30602,
any alppealable action on a coastal development permit or claim of exemption
for anly development by a local government or a regional commission or port govern-
ing body may be appealed to the commrlission by an applicant, any aggrieved person
except in the cape of denials by a regional commission, or any twoi members of the
commission. The regional commission, with respect to appeals pursi'ant to sub-
division (a) of Section 30602, or the commission may approve, modify, or 'deny such
proposed development, and if no. action is taken within the time lmit speified. in
Sections 310621 and 30622, the decision of tile vetiolal coilnilssliof,the localrgovern.
'ment, or port governing 'body, as the case 'may'oh, shall become fina};, nless&the.
time limit in Section 30621 or 30622 is waived by the applicant. .ii: , ' 't I
For purposes of this division, failure by any regional commifssion t~o'abtwlthlJ-
iany time limit specified In this division shall constitute an "action taken" ' ':-

259

(b) The regional commission with respect to appeals piursuant to subdivision (a)
of Section 30602, or the commission shall hear an appeal unless it determines that
the appeal raises no substantial issue, or It finds the' following:
(1 With respect to appeals' pursuant to subdivision (a) of Section 30602, that no
siigificant question exists as to conformity withi Chapter 3 (commencing with See-
tion 30200).
(2) Withi respect to appeals to the commission after certification of a local coastal
program, that no significant question exists as to conformity with the certified local
coastal program.
(3) With respect to appeals to the commission after certification of a port master
plan, that no significant question exists as to conformity with the certified port
master plnm.
(C) Decisions of the commission, where applicable, shall guide the regional com-
missions, local governments, or port governing bodies in their future actions under
the provisions of this division.
30626.
The commission may, by regulation, provide for the reconsideration of the terms
and conditions of any coastal development permit granted by a regional commission
or the commission solely for the purpose of correcting any information contained
in such ternis and conditions.
CHAPTER 8. PORTS

ARTICLE I. FINDINGS AND GENERAL PROVISIONS
30700.
For purposes of this division, notwithstanding any other provisions of this divi-
sion except Is specifically stated in this chapter, this chapter shall govern those
portions of the Ports of Hueneme, Long Beach, Los Angeles, and San l)iego Unified
Port )istrict, located within tile coastal zone excluding any wetland, estuary, or
existing recreation area indicated in lPart IV of the coastal plan, are contained with-
in this chapter.
30700.5.
The definitions of Chapter 2 (commencing with Section 30100) and the provisions
of Chapter 9 (commencing with Section 30800) and Section 30900 shall apply to this
chapter.
30701.
The Legislature finds and declares that:
'(a) The ports of the State of California constitute one of the state's primary eco-
nomic anid coastal resources and are an essential element of the national maritime
industry.
(1h) The locations of the comumercial port districts within theI State of C alifornia
are well established, and for many years -such areas have been devoted to trans-
portation and comnmercial, industrial, and manufacturing uses consistent with federal,
state, and local regulations. Coastal planning requires no change in the number or
location of the established commercial port districts. Existing ports shall be en-
couragel to modernize and construct necessary facilities within their boundaries in
order to minimize or eliminate the necessity for future dredging and filling to create
new ports in new areas of the state. -

3070 ARTICLE 2. POLICIES
30702. 1
For purposes of this division, the policies of the state with respect to providing
for port-related developments consistent with coastal protection in the port areas
to which this chapter applies, which require no commission permit after certlfica-
tion of a port master plan and which, except as provided in Section 30715, are not

appealable to tihe commission after certification of a, master plan, are "st forth in
this chapter. .
30703.
The California commercial fishing Industry is important to the State of Cali-
fornla; therefore, ports shall not eliminate or reduce existing commercial fishing
harbor space, unless the demand for commercial fishing facilities no longer exists
or adequate alternative space has been provided. Proposed recreational boating
facilities within port areas shall, to the extent it is feasible to do so, be designed
and located in such a fashion as not to interfere with the needs of tile commercial
fishing industry.
30705.
(a) Water areas may be diked, filled, or dredged when consistent with a certified
port master plan only for the following:
(1) Such construction, deepening, widening, lengthening, or maintenance of ship
channel approaches, ship channels, turning basins, berthing areas, and facilities as
are required for the safety and the accommodation of commerce and vessels to be
served by port facilities.
(2) New or expanded facilities or waterfront land for port-related facilities.
(3) New or expanded commercial fishing facilities or recreational boating fa-
cilities.

260

(4{ Incidental public service purposes, including, but not limited to, burying cables
or pilps or inspection of piers and mainlltenalice of existing intake and outfall lines.
(5) linkeral extraction, including sand for restoring beaches, except in biologically
sensitive areas.
(6E) Restorationl purposes or creation of new habitat areas.
(7) Natl.ure study, inariculture, or similar resol rce-depenldent activitles.
(8) Milor fill for improvilig shoreline app)earance or pullic access to the water.
(b) The demsign anil location of new or explnoled facilities shall, 1o tlhe extent prile-
ticitcia,, tI le( aldvalntilag of exisling wate r lepths, water eircillati:oll, slltatlon pall
terns, anld niellis aivallable to reduce eoitrolllable sedimelitatlon so as to (lilllnish
the need for future dredgIng.
(c) l)redging shall lbe planned, scheduled, and carried out to minilize disruption
to fish aIld bird breeding and migrations, marine habitats, mind water circulation.
Bottom sediments or sedilient elutriate shall be analyzed for toxicants prior to
dredging or nining, ali d where water quality standlar(ds arle met, dredge spolls may
he deposil(d in open coastal water sites designiltedl to minilnize polentlal adverse
impacts on nuirine organisms, or in colifillnel oastal waters deslgnlted as fill sites
by the al:tster plhin whert. such spoil cain l)e isolated and contained, or In fill hasins
on upland sites. Dredge material shall not be transported from coastal waters Into
estuarine or fresh water a:reas for disposal.

30706.
In addition to the other provisions of this chapter, the pollcies contained In this
section shall govern filling seaward of the mean high tide line within the jurisdic-
tion of ports:
(a) The water area to be filled shall be the minimum necessary to achieve the
purpose of the fill.
(b) The nature, location, and extent of, any fill, .including the disposal of dredge
spoils within an area designated for fill, shall minimize harmful effeicts to opastal
resources, such as water quality, fish or wildlife resources, recreational resourcei,
or sand transport systems, aund �hall minimize reductions of the volume, surface
area, or circulation of water.
(e) The fill is constructed in accordance with sound safety standards which;will
Afford reasonable protection to persons and property'against the hazards of un-
stable geologic or soil conditions or of flood or storm waters. :
(d) The fill is consistent with navigational safety.
30707. : *' ' . " . -
New or expanded tanker terminals bhall be: designed and constructed to do all of
the following: ' "
(nA) Minimize the total volume of oil spilled * *
(b) Mininmi2ze the risk of collisionl from movement of other vessels.
(e) Have ready access to the most effective feasible oilspill containment and. re-
covery equlpmi(nt.
(d) llave onshore deballasting facilities to receive any fouled ballast water fromi
tankers where operationally or legally req'nired.
30708.
All port-related developments shall be located, designed, and constructed so as to:
(a) AMinimize substantial adverse environmental impacts.
(b) Minimize potential traffic conflicts between vessels.
(C) OGive highest priority to the use of existing land space within harbors for
port purposes, including, but not limited to, navigatlional facilities, shipping indus-
tries, and necessary support and access facilities.
(d) Provide for other beneficial uses consistent with the public trust, including,
but not limited to, recreation and wildlife habitat uses, to the extent feasible.
(e) Encourage rail service to port areas and multicompany use of facilities.

AItTICLE 3. IMPILEMENTATION; MASTER PLAN
30710.
WIthinl !) d;ays after J.anuary 1, 15177, tlie conmission shall, aftqer public hearing,
adopt, certify, and file with each port governing body a map delineating the present
legal geographical boundaries' of each port's jurisdliction within the coastal zone.
The commnission shall, within such 90-daty period, adopt and certify after public
hearing, :1 mllap declineating boundaries of anlly wetland, estuary, or existing recrea-
tion tr a Indicalted in Part IV of the coastal pllan within the geographical boundaries
of each l] rlt.

30711.
(a) A ,port a:aster piln that carries out tile provisions of this chtapter shall be pre-
pared and adopted by each port governing body, and for infolrlatioial purposes,
each city, county, or city and county which bals it port within its Jurisdiction shall
Incorporate thl certified port master plain inl ts local coastal program. A port
master plan shall include all of the following:
(1) The proposed uses of land and water areas, where known.

261

(2) The projected design and location of port land areas, water areas, berthing,
and navigation ways and systems intendled to serve commlercial traffic within the
area of jurisdiction of the port governing body.
(3) An estimate of the effect of development on habitat areas and the marine
environment, at review of existing water quality, habitat areas, and quantitative
and qualitative biological inventories, and proposals to minimize and mitigate any
substantial adverse impact.
(4) Proposed projects listed as appealable in Section 30715 in asutfleent., detail
to be able to determine their consistency with the pollciqg �of Chapter 9 (,o* el/ecng
with Section 80200) of this division.
(5) Provisions for adequate publlc hearings and public partlcipation ai. . lan
ning and develoqment decisions.
(b) A por-t xnastrp l;an sai,'tl contain iniformiatioin in suIIcelent adeti ' low
the commission to determine its adequacy and conformity with phe appllale4 pol-
icies of this division.
30712.
In the consideration and approval of a proposed port master plan,.jhp public,
interested organizations, and governmental agencies shall be encouraged to submit
relevant testiinolly, statements, and evidence which shall be considered by the'port
governing body. The port' governing body shall publish notice of -the eoffipletioin
of the draft master plan and submit a copy:;thereof to the commission and Shall,
upon request, provide copies to other interested persons, organizations, and gov-
erlnmental agencies. Thereafter, the port governing body shall hold a public hear-
ing on the draft master plan not earlier than 30 days and not later than 90 days
following the date the notice of completion was published.
30713.
Ports having completed a master plan prior to January 1, 1977, shall submit a
copy thereof to the commission and hold a public hearing in accordance with the
provisions of Section 30712 for the purpose of reviewing such master plan for con-
formity with the applicable provisions of this division and, if necessary, adopting
such changes as would confornl such plan to the applicable provisions. of this divi-
sion. Notice of completion of a master plan shall not be filed prior to January 2,
30714.
30714. ' ~ ' , : ..
After public notice, hearing, and consideration of comments and testimony re-
ceived pursuant to Sections 30712 and 30713, the port governing body shall adopt
its master pilan and submit it to the commission for certification In accordanc(
with this chapter. Within 90 days after tile sul)mittal, the commission, after publie
hearing, shall certify such plan or portion of a plan and reject any portion of a
plan which is not certified. If the commission fails to take action within the )l0day
period, the port master plan shall be deemed certified. The commission shall certl-
fy such plan or portion of a plan if the commission finds both of the following:
(a) The master plan or certified portions thereof conforms with and carries out
the poll(cles of this clhapter.
(b) Wihere a master plan or certified portions tlereof provide for ally of the de-
velol)ments listed as appeahl:l)l in Section 30715 of this chapter, lluch developinmlli
or developments are in conformity with all of the policies of Chapter 3 (commencing
with Sectionl 30200) of this division.
30715.
Intil sulch time as a port master plan or any portion thereof has been cei'lfled,
the commission and regional com.nlissiolls slhall permit developments within ports
as provided for in Chapter 7 (commencing with Section 30600). After a port mals-
ter plan or any portion thereof has been certified, the permit authority of the com-
mission provided in Chapter 7 (commencing with Section 30600) shall no longer he
exercised by the regional commission or by the commission over any new develop-
ment contained In such a certified plan or any portion thereof and shall at that
time he delegated to the appropriate port governing body, except that approvals
of any of the following categories of development by the port governing body may
be appealed to the commission:
(a) Developments for the storage, transmission, and processing of liquefied nat-
ural gas and crude oil in such quantities as would have a significant impact upon
the oil and gas supply of the state or nation or both the state and nation. A de-
velopment which has a significant impact shall be defined in the master plans.
(b) Waste water treatment facilities, except for such facilities, which process
waste water discharged incidental to normal port activities or by vcsaels.-
(c) Roads or highways which are not principally for internal clrculation within
the port boundartie : - ii . .
(d) Office and residential buildings not princlpally devoted Ito admlnistriiton of
activities within the pOrt; hotels, motels, and shopping facilities lot liielSpally
devoted to the sale of commercial goods utilized for water-oriented purpddal; com-
mercial fishing facilities; and recreational small craft marina related fadficties.
(e) Oil refineries.
(f) Petrochemicat production plants.' ' .. .
30715.5. * * ... , . > : .,. ;
No development within the area covered by the certified port master planu-shall
be approved by the port governing body unless it finds that the proposed develop-
ment conforms with such certified plan.

262

30716.
(a) A certified port master plan may be amended by the port governing body,
but no such amendment shall take effect until it has been certified by the commis-
sion. Any proposed amendment shall be submitted to, and processed by, the com-
mission in the same manner as provided for submission and certification of a port
master plan.
(b) The commission shall, by regulation, estabish a procedure whereby proposed
amendments to a certified port master plan may be reviewed and designated by the
executive director of the commission as being minor In nature and need not comply
with Section 30714. Such amendments shall take effect on the 10th working day
after the executive director designates such amendments as minor.
30717.
The governing bodies of ports shall inform and advise the commission in the
planning and design of appealable developments authorized under this chapter, andi
prior to commencement of any appealable development, the governing body of a
port shall notify 'the commission and other interested persons, organizations, and
governmental agencies of the approval of a proposed appealable development and
indicate how it Is consistent with the appropriate port master plan and this divi-
sion. An approval of the appealable development by the port governing body pur-
suant to a certified port master plan shall become effective after the 10th working
day after notification of its approval, unless an appeal is filed with the commis-
sion within that time. Appeals shall he filed and processed by the commission in
the same manner as appeals from local government actions as set forth in Chapter
7 (commencing with Section 30600) of this division. No appealable development shall
take place until the approval becomes effective.
30718.
For developments approved by the commission in a certified master plan, but
not appealable under the provisions of this chapter, the port governing body shall
forward all environmental impact reports and negative declarations prepared par
suant to the Environmental Quality Act of 1970 (commencing with Section 21000)
or any environmental Impact statements prepared pursuant to the National En-
vironmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) to the commission in a timely
manner for comment.
30719.
Any development project or activity authorized or approved pursuant to the
provisions of this chapter shall be deemed' ertified by the commission as being
In conformity with the coastal zone management program insofar as any such eer-
tification is requested by any federal agency pursuant to the Federal Coastal Zone
Management Act of 1972 (16 U.S.C. 1451, et seq.), National Oceanic and Atmospheric
Administration, and memoranda of understanding between the state and federal
governments relative thereto.
30720. ; . , I'
If the applicatlon of any port master plan or part thereof is prohibited og stayed
by any court, the permit authority provided for In Chapter 7 (commencing with
Section 30600) shall be reinstated in thq regional commission or In the commission
where there is to riegional cammission. The reinstated permit authoritfy shail apply
as to any developme&nt which would be affected by the prohibition or'stay;'

CHAPTER 9. JUDICIAL REVIEW, ENFORCEMENT, -"r:':?s;
. .. ,:X- -AND PENALTIES .;. � ', -:

ARTICLE 1. GENERAL PROVISIONS
v,%
30800.
The provisions of this chapter shall be il addition to any other remedies avall-
able at law. . .
30801.
Any aggrieved person shall have a right to judicial review of any decision or ac-
lion of the commission or a regional commission by filing a petition for a writ of
mandate in accordance with the provisions of Section 1094.5 of the Code of Civil
Procedure, within 60 days after such decision or action has become final,
For purposes of this section and subdivision (c) of Section 30513 and Section 30625,
an "aggrieved person" means any person who, in person or through a representa-
tive, appeared at a ITlblic hearing of the commission, regional commission, local
government, or port governing body in conllection with the decilsion or action ap-
pealed, or whIlo, Iy other appropriate nlmeanls prior to a hearing, informed the conl-
mission, regional commission, local government, or port governing body of the na-
ture of his concerns or who for good cause was unable to do either. "Aggrieved
person" includes the applicant for a permit and, in the case of an approval of a
local coastal program, the local government involved.
30802. ,
Any person, including an applicant for a permlt or the commission, aggrieved
by the decision or action of a local government that is implementing a- certified
local coastal program or certified port master plan, which decision or action may
not be appealed to the commission, shall have a right to judicial review of such
decision or action by filing a petition for writ of mandate in accordance with the

263

provisions of Section 1094.5 of the Code of Civil Procedure within 60 days afterthe
dlecisioll or aictiont has IleoIlle final. The (ommlission may intervele in any sllell
proo.t iifig Ilupon a shlowIIIg I l III Ce lnalt(r I Involves It (1110stion of the conformity
of a lrllseld dleveloplmnelt with a ceortifield local coastal progranl or certified port
nmaster phtll or the validity of ai local governmlent action taken to implement a lo-
cal eoas:fil progrnm or certified port ilaster plan. Any local government or port
governing hody may request that tile commission Intervene. Notice of any suchl
actionl agalist a local government or port governing body shalll be filed with the
eolnimlssiom within five working days of the filing of such action. When an action
is brought challenging the validity of a local coastal program or certified port mns-
ter plan, a prelimina:ry showing shall be made prior to proceeding on the merits
as to wlhy such action should not have been brought pursuant to the provisions of
Section 30801.

30803.
Any person may maintain an action for declaratory and equitable relief to re-
strain alny violatioll of this division. Oni a primau faecie showing of a violation 1of'
this division, prelimninary equitalble relief sihall be issued to restrain any further
violaltiorl of this division. No bond shall be required for an action under this see-
tion.

30804.
Any iperson may maintain an action to enforce the duties specifically imposed
upon the colmmission, any regional commission, any governmental agency, any spe-
cial district, or any local government by this division. No bond shall be required
for an action under this section.
30805 . .. ,. . ....
Any person may maintain an action for the recovery of civil penalties provided for
In Section 30820 or 30821. x, ;:
30806. . .
Any civil action under this division by, or against, a city, county, or 'city and
county, the commission, regional commission, special district, or any other public
agency shall, upon motion of either party, be transferred to a county or city and
county not a party to the action or to a county or city and county other than that
in which the city, special district, or any other public agency which is a party to the
action is located.
30807-.
Any person may maintain an action seeking afin order to remove a local coastall
program or any portion thlreof, anlly coastal developnleat permit applicatidIll or
appeal therefrom, from the appropriate regional ConssllrissiOil's eoonsidtlpati.o( itul
to require that such local coastal program or any portion th{ereof, coastal develop-
ment permit application or appeal therefrom, be reviewed nntl processed by tIhe
comnlission. The court may grant shell order wvhere to do so vwould better carry
out the purposes of thils division and where the court determines that suell order
would expedite the review of such local coastal program or any portion thereof,
or of such coastal devellpmnent permit application, or appeal therefrom._ .-
5 30808. Actions to ensure compliance with terms and conditions of urban exclusion
In addlition to any other remedy provided Ily this article, any person Inclldlng
the coIImlllission, may bring anl action to restrain a violation of the terms naldonll
ditionls of an urban exclusion impllosed pursualnt to Section 30010.5. In ally suct
action tihe court may grant whatever relief it deelmls appropriate to ensure com-
pliee with ll the ternIs and conditions of the uranll exclusionl.
ARTICLE 2. PENALTIES
30820.
Any person who violates any provision of this division shall be subject to a civil
fine of not to exceed ten thousand dollars ($10,(0]0).
302 1.
In addition to any other penalties, any person who Intentionally and knowingly
perfornis any development ill violation of this division shall be subject to a civil fine
of not less than fifty dollars ($50) nor more than five thousand dollars ($5,000) per
day for each day in which such violation occurs.
30822.
Where a person has intentionally and knowingly violated any provision of this
division, the commission may maintain an action, in addition to Section 30801, for
exemplary damages and may recover an a-ward, the size of which is left to the dis-
cretion of the court. In exercising its discretion, the court shall consider the
amount of liability necessary to deter further violations.
30823.
Any funds'derived by the commission or regional commission under this article
shall he expended for carrying out the provisions of this division, when appropri-
ated by the Legislature.

CHAPTER 10. SEVERABILITY
30900.
If any provision of this division or the application thereof to any person or
circumnstances is held invalidl, such invalidity shall not affect other provisions or
applications of tile division which can be given effect without the invalid provision
or application, and to this end the provisions of this division are severable.

264

NORTH CAROLINA COASTAL AREA MANAGEMENT ACT
N.C. GEN. STAT. Sections 113A-100 to -128 (1975)
ARTICLE 7.
Coastal Area Management.
Part 1. Organization and Goals.
� 113A-100. Short title. - This Article shall be known as the Coastal Area
Management Act of 1974. (1973, c. 1284, s. 1.)

Editor's Note. - Session'Laws 1973, c. 1284, the entire act shall expire on June 30, lXl."'l'lt
s. 3, provides: "This act shall become effective act was ratified April 12, 1974.
July 1. 197.4, except that the provisions of this Session Laws 197.3:, . 1284, s. 1, colltailis a
act relating to the selec'tion of the initial Commnlis- section numnered l 11:3A-129, which is a st\ er'
sion shall become effective upon ratification, and ability clause. Editor's Note. -
Session Laws 1975, c. 452, s. 5, amends Session
Laws 1973, c. 1284, s. 3, so as to change the
expiration date of the 1973 act from June 30,
1981, to June 30, 1983.
� 113A-101. Cooperative State-local program. - This Article establishes a
cooperative program of coastal area management between local and State
governments. Local government shall have the initiative for lanning. State
government shall establish areas of environmental concern. With regard to
planning, State government shall act primarily in a supportive standard-setting
and review capacity, except where local governments do not elect to exercise
their initiative. Enforcement shall be a concurrent State-local responsibility.
(1973, c. 1284, s. 1.)
� 113A-102. Legislative findings and goals. - (a) Findings. - It is hereby
determined and declared as a matter of legislative finding that among North
Carolina's most valuable resources are its coastal lands and waters. The coastal
area, and in particular the estuaries, are among the most biologically productive
regions of this State and of the nation. Coastal and estuarine waters and
marshlands provide almost ninety percent (90%) of the most productive sport
fisheries on the east coast of the United States. North Carolina's coastal area
has an extremely high recreational and esthetic value which should be preserved
and enhanced.
In recent years the coastal area has been subjected to increasing pressures
which are the result of the often-conflicting needs of a society expanding in
industrial development, in population, and in the recreational aspirations of its
citizens. Unless these pressures are controlled by coordinated management, the
very features of the coast which make it economically, esthetically, and
ecologically rich will be destroyed. The General Assembly therefore finds that
an immediate and pressing need exists to establish a comprehensive plan for the
protection, preservation, orderly development, and management of the coastal
area of North Carolina.
In the.implementation of the coastal area management plan, the public's
oppoitunity to enjoy the physical, esthetic, cultural, and recreational qualities
of the natural shorelines of the State shall be preserved to the greatest extent
feasible; water resources shall be managed in order to preserve and enhance
water quality and to provide optimum utilization of water resources; land
resources shall be managed in order to guide growth and development and to
minimize damage to the natural environment; and private property rights shall
be preserved in accord with the Constitution of this State and of the United
States.
(b) Goals. - The goals of the coastal area management system to be created
pursuant to this Article are as follows:
(1) To provide a management system capable of preserving and managing
the natural ecological conditions of the estuarine system, the barrier
dune system, and the beaches, so as to safeguard and perpetuate their
natural productivity and their biological, economic and esthetic values;
(2) To insure that the development or preservation of the land and water
resources of the coastal area proceeds in a manner consistent with the.
capability of the land and water for development, use, or preservation
based on ecological considerations;
(3) To insure the orderly and balanced use and preservation of our coastal
resources on behalf of the people of North Carolina and the nation;

265

(4) To establish policies, guidelines and standards for:
a. Protection, preservation, and conservation of naturalresources
including but not limited to water use, scenic vistas, and fish and
wildlife; and management of transitional or intensely developed
areas and areas especially suited to intensive use or 'development,
as well as areas of significant natural value;
b. The economic development of the coastal area, including but not
limited to construction, location and design of industries, port
facilities, commercial establishments and other developments;
c. Recreation and tourist facilities and parklands;
d. Transportation and circulation patterns for the coastal area
including major thoroughfares, transportation routes, navigation
channels and harbors, and other public utilities and facilities;
e. Preservation and enhancement of the historic, cultural, and scientific
aspects of the coastal area;
f. Protection of present common-law and statutory public rights in the
lands and waters of the coastal area;
g. Any other purposes deemed necessary or appropriate to effectuate
the policy of this Article. (1973, c. 1284, s. 1.)
� 113A-103. Definitions. - As used in this Article:
(1) "Advisory Council" means the Coastal Resources Advisory Council
created by G.S. 113A-105.
(2) "Coastal area" means the counties that (in whole or in part) are adjacent
to, adjoining, intersected by or bounded by the Atlantic Ocean
(extending offshore to the limits of State jurisdiction, as may be
identified by rule of the Commission for purposes of this Article, but
in no event less than three geographical miles offshore) or any coastal
sound. The Governor, in accordance with the standards set forth in this
subdivision and in subdivision (3) of this section, shall designate the
counties that constitute the "coastal area," as defined by this section,
and his designation shall be final and conclusive. On or before.May 1,
I 1974, e G iv ernoir s ilfe copies of a list of said coastltaiuties
with the chairmeiin of the boards of commissioners of each eo6{i'i'n in the
coastal area, with the mayors of each incorporated city iiitin the
coastal area (as so defined) having a population of 2,000 or mire and
of each incorporated city having a population of less than 2,000 whose
corporate boundaries are contiguous with the Atlantic Ocean', Mid with
the Secretary of State. The said coastal-area counties and cities shall
thereafter transmit nominations to the Governor of members of the
Coastal Resources Commission as provided in G.S. 113A-104(d).
(3) "Coastal sound" means Albemarle, Bogue, Core, Croatan, Currituck,
Pamlico and Roanoke Sounds. For purposes of this Article, the inland
limits of a sound on a tributary river shall be defined as the limits of
seawater encroachment on said tributary river under normal
conditions. "Normal conditions" shall be understood toe include
regularly occurring conditions of low stream flow and high tide, but
shall not include unusual conditions such as those associated with
hurricane and other storm tides. Unless otherwise determined by the
Commission, the limits of seawater encroachment shall be considered
to be the confluence of a sound's tributary river with the river or creek
entering it nearest to the farthest inland movement of oceanic salt
water under normal conditions. For purposes of this Article, the
aforementioned points of confluence with tributary rivers shall include
i the following:
a. On the Chowan River, its confluence with the Meherrin River;
b. On the Roanoke River, its confluence with the northeast branch of
the Cashie River;
c. On the Tar River, its confluence with Tranters Creek;
d. On the Neuse River, its confluence with Swift Creek;
e. On the Trent River, its confluence with Ready Branch.
Provided, however, that no county shall be considered to be within
the coastal area which: (i) is adjacent to, adjoining or bounded'by any
of the above points of confluence and lies entirely west of said point
of confluence; or (ii) is not bounded by the Atlantic Ocean and lies
entirely west of the westernmost of the above points of confluence.

266

(4) "Commission" means the Coastal, Resources Commission created by
G.S. 113A-104.
(5) a. "Development" means any activity in a duly designated'area of
environmental concern (except as provided in paragraph b of this
subdivision) involving, requiring, or consisting of the construc-
tion or enlargement of a structure; excavation; dredging; filling;
dumping; removal of clay, silt, sand, gravel or minerals; bulkhead-
ing, driving of pilings; clearing or alteration of land as an adjunct
of construction; alteration or removal of sand dunes; alteration of
the shore, bank, or bottom of the Atlantic Ocean or any sound,
bay, river, creek, stream, lake, or canal.
b. The following activities 'including the normal and incidental
operations associated therewith shall not be deemed.to be
development under this section;:
1. Work by a highway or road agency for the maintenance of an
existing road, if the work is carried out on land within the
boundaries of the existing right-of-way;
2. Work by any railroad company or by any utility and other
persons engaged in the distribution and transmission of
petroleum products, water, telephone or telegraph messages,
or electricity for the purpose of inspecting, repairing,
maintaining, or upgrading any existing substations, sewers,
. : mains, pipes, cables,, utility tunnels, lines, toWe~sy'oles,
tracks, and the like on any' bf its existing railroad 'oritility
property or rights-of-way, or the extension of any of thiabove
distribution-related facilities to serve development apiproved
pursuant to G.S. 113A-121 or 113A-122; ....
.. . 3. Work by any utility and other persons for the puri.e of
construction of facilities for the development, generation, and
transmission of energy to the extent that such activities are
regulated by other law or by present or future rules/ f the
State Utilities Commission regulating the siting: 'f such
facilities.(including environmental aspects of such sitiing, and
work on facilities used directly in connection with fie above
facilities;
4. The use of any land for the purpose of planting, growig, or
harvesting plants, crops, trees, or other agricultural or
forestry products, including normal private road constiuetion,
raising livestock or poultry, or for other agricultural purposes
except where excavation or filling affecting estuarine waters
(as defined in G.S. 113-229) or navigable waters is involved;
5. Emergency maintenance or repairs;
6. The construction of any accessory building customarily incident
to an existing structure if the work does not involve;filling,
excavation, or the alteration of any sand dune or beach;
7. Completion of any development, not otherwise in violation of
law, for which a valid building or zoning permit was issued
prior to ratification of this Article and which development was
initiated prior to the ratification of this Article;
8. Completion of installation of any utilities or roads or related
facilities not otherwise in violation of law, within a subdivision
that was duly approved and recorded prior to the ratification
of this Article and which installation was initiated prior to the
ratification of this Article;
9. Construction or installation of any development, not otherwise
in violation of law, for which an application for a building or
zoning permit was pending prior to the ratification of this
Article and for which a loan commitment (evidenced by a
notarized document signed by both parties) had been made
prior to the ratification of this Article; provided, said building
or zoning application is granted by July 1, 1974; -
10. It is the intention of the General Assembly that' if the
provisions of any of the foregoing subparagraphs I to 10 of
this paragraph are held invalid as a grant of an exclusive or
separate emolument or privilege or as a denial of the equal
protection of the laws, within the meaning of Articl0 Iesecs.
19 and 32 of the North Carolina Constitution, the remainder
of this Article shall be given effect without the invalid
provision or provisions.
267

c. The Commission shall define by rule (and may revise from time to
time) certain classes of minor maintenance and improvements
which shall be exempted from the permit requirements of this
Article, in addition to the exclusions set forth in paragraph b of this
subdivision. In developing such rules the Commission shall
consider, with regard to the class or classes of units to be
exempted:
1. The size of the improvement or scope' of the mainteha'ork;
2. The location of the improvement or work in proximitmt&~unes,
waters, marshlands, areas of high seismic activity; 'ieas of
unstable soils or geologic formations, and areas enuneated
in G.S. 113A-113(b)(3); and
3. Whether or nor dredging or filling is involved' in the
-�: .' maintenance or improvement.
(6) "Key facilities" include the site location and the location M:'omajor
improvement and major access features of key facilities, and nmean:
a. Public facilities, as determined by the Commission, on nonfederal
lands which tend to induce development and urbanization of more
than local impact, including but not limited to: :
1. Any major airport designed to serve as a terminal for regularly
scheduled air passenger service or one of State con rn
2. Major interchanges between the interstate highway stem and
frontage-access streets or highways; major interchanges
between other limited-access highways and frontage-access
streets or highways;
3. Major frontage-access streets and highways, both.. of State
concern; an .
4. Major recreational lands and facilities;
b. Major facilities on nonfederal lands for the development, generation,
and transmission of energy.
(7) "Lead regional organizations" mean the regional planning`iagencies
created by and representative of the local governments of a: multi-
-county region, and designated as lead regional organizatiofs by the
Governor. : '
(8) 'L'ocal government" means the governing body of any county lor city
which contains within its boundaries any lands or waters subject to this
Article. , . ,
(9) "Person" means any individual, citizen, partnership, coilporation,
association, organization, business trust, estate, trust, public or
municipal corporation, or agency of the State or local government unit,
or any other legal entity however designated.
(10) "Rule" means any policy, regulation or requirement of 'eneral
application adopted pursuant to this Article. (1973, c. 1284, $I1.)I)
� 113A.104. Coastal Resources Commission. - (a) The General Assembly
hereby establishes within the Department of Natural and Economic Resources
a commission to be designated the Coastal Resources Commission.
(b) Composition. - The Coastal Resources Commission shall consist'of 15
members appointed by the Governor, as follows:
(1) One who shall at the time of appointment be actively connected' ith or
have experience in commercial fishing.
(2) One who shall at the time of appointment be actively connecte, with or
have experience in wildlife or sports fishing.
(3) One who shall at the time of appointment be actively connecteWith or
have experience in marine ecology.
(4) One who shall at the time of appointment be actively connectedWith or
have experience in coastal agriculture.
(5) One who shall at the time of appointment be actively connected ith or
have experience in coastal forestry. : ?
(�, One who shall at the'time of appointment be actively connected:; with or
* have experience in coastal land development.
'(7) One who shall at the time of appointment be actively connected:trh or
have experience in marine-related business (other than fishing and
wildlife). .!~.

268

' (8) One who shall at the time of appointment be actively connkited with or
have experience in engineering in the coastal area. I :i:
(9) One who shall at the time of appointment be actively associated with
'; i a State or national conservation organization.
~ (10) One who shall at the time of appointment be actively connected with
.A -or.have experience in financing of coastal land development.
(11) Two who shall at the time of appointment be actively connected with
or have experience in local government within the coastal area.
(12) Three at-large members.
(c) The Governor shall appoint in his sole discretion those members of the
Commission whose qualifications are described in subdivisions (6) and (10), and
one of the three members described in subdivision (12) of subsection (b) of this
section. The remaining members of the Commission shall be appointed by the
Governor after completion of the" nominating procedures prescribed by
subsection (d) of this section.
(d) On or before May 1 in every even-numbered year the Governor shall
designate and transmit to the board of commissioners in each county in the
coastal area four nominating categories applicable to that county for that year.
Said nominating categories shall be selected by the Governor from among the
categories represented, respectively by subdivisions (1), (2), (3), (4)j {5), (7), (8),
(9), (11) - two persons, and (12) - two persons, of subsection (b),of this section
(or so many of the above-listed paragraphs as may correspond to vacancies by
expiration of term that are subject to being filled in that year). On or before June
1 in every even-numbered year the board of commissioners of each; county in
the coastal area shall nominate (and transmit to the Governor the names of) one
qualified person in each of the four nominating categories that was designated
by the Governor for that county for that year. In designating' i'minating
categories from biennium to biennium, the Governor shall equitsbly Rotate said
categories among the several counties of the coastal area as in his judgment he
deems best; and he shall assign, as near as may be, an even number of nominees
to each nominating category and shall assign in his best judgment any excess
above such even number of nominees. On or before June l:-in every
even-numbered year the governing body of each incorporated city:iwithin the
coastal area having a population of 2,000 or more, and of each incorpdoated city
having a population of less than 2,000 whose corporate boundaries are
contiguous with the Atlantic Ocean, shall nominate (and transmit to the
Governor the name of) one person as a nominee to the Commission. The
Governor shall appoint 12 persons from among said city and county nominees
to the Commission. The several boards of county commissioners and city
governing bodies shall transmit the names, addresses, and a brief summary of
the qualifications of their nominees to the Governor on or before June 1 in each
even-numbered year, beginning in 1974; provided, that the Governor, by
registered or certified mail, shall notify the chairmen or the mayors of the said
local governing boards by May 20 in each such even-numbered year of the
duties of local governing boards under this sentence. If any board of commis-
sioners or city governing body fails to transmit its list of nominaiions to the
Governor by June 1, the Governor may add to the nominations a list of
qualified nominees in lieu of those that were not transmitted by the 'board of
commissioners or city governing body. Within the meaning of this section, the
"governing body" is the mayor and council of a city as defined irn 'G.S. 160A-
66. The population of cities shall be determined according to the most recent
annual estimates of population as certified to the Secretary of Revenue by
the Secretary of Administration. .
(e) All nominees of the several boards of county commissioners and city
governing bodies must reside within the coastal area, but need not ieiide in the
county from which they were nominated. No more than one of those members
appointed by the Governor from among said nominees may reside in a particular
county. No more than two members of the entire Commission, at anime, may
reside in a particular county. No more than two members of tlie entire
Commission, at any time, may reside outside the coastal area.
(f) Membership on the Coastal Resources Commission is hereby declared to
be an office that may be held concurrently with other elective or 4ppointive
offices in addition to the maximum number of offices permitted to be-held by
one person under G.S. 128-1.1.

259

(g) The members shall serve staggered terms of office of four yearsAt the
expiration of each member's term, the Governor shall reappoint or replace the
member with a new member of like qualification (as specified in subs.tion (b)
of this section), in the manner provided by subsections (c) and (d) of this 4ection.
The initial term shall be determined by the Governor in accordantcj' with
customary practice but eight of the initial members shall be appointed for two
years and seven for four years.
(h) In the event of a vacancy arising otherwise than by expiratiqn;of term,
the Governor shall appoint a successor of like qualification (as specified in
subsection (b) of this section) who shall then serve the remainder 'of his
predecessor's term. When any such vacancy arises, the Governor: shall
immediately notify the board of commissioners of each county in the coastal area
and the governing body of each incorporated city within the coastal area having
a population of 2,000 or more and of each incorporated city having a population
of less than 2,000 whose corporate boundaries are contiguous with the Atlantic
Ocean. Within 30 days after receipt of such notification each such county board
and city governing body shall nominate and transmit to the Governor the name
and address of one person who is qualified in the category represented by the
position to be filled, together with a brief summary of the qualifications of the
nominee. The Governor shall make the appointment from among said city and
county nominees. If any county board or city governing body fails to make a
timely transmittal of its nominee, the Governor may add to the nominations a
qualified person idn lieu of said nominee.
(i) The chairman shall be designated by the Governor from amrnig the
members of the Commission to serve as chairman at the pleasurefi& the
Governor. The vice-chairman shall be elected by and from the members of the
Commission and shall serve for a term of two years or until the expiration of
his regularly appointed term.
(j) Compensation. - The members of the Commission shall receive per diem
and necessary travel and subsistence expenses in accordance with the provisions
of G.S. 138-5. (1973. c. 1284, s. 1.)
� 113A-105. Coastal Resources Advisory Council. - (a) Creation' ,-There
is hereby created and established a council to be known as the Coastal Resources
Advisory Council.- : :'
(b) The Coastal Resources Advisory Council shall consist of not more tan 47
members appointed or designated as follows: ' :
(i) Three individuals designated by the Secretary of Natural and:Ee.omic
Resources from among the employees of his Department;
.'(2) The Secretary of the Department of Administratlon or his designee;
,(3) The Secretary of the Department of Transportation and HighwaySafety
or his designee, and one additional member selected byhim from his
Department;
(4) The Secretary of the Department of Human Resources or his designee;
(5) The Commissioner of Agriculture or his designee;
16) The Secretary of the Department of Cultural Resources or his designee;
.'~"r!) One member from each of the four multi-county planning dist:Iayt of
the coastal area to be appointed by the lead regional agency' of each
- district; :
.(8) One representative from each of the counties in the coastal area to be
i, , -designated by the respective boards of. county commissioners;
' (9)' No more than eight additional members representative of ci];iep'i the
coastal area and-to be designated by the Commission; /'* . :'
(10) Three members selected by the Commission who are marine scientists
or technologists; , b..
' (11) One member who is a local health director selected by the Comnmission
upon the recommendation of the Secretary of Human Resou'rces.
(c) Functions and Dutiesi - The Advisory Council shall assist the Secretaries
of Administration and of Natural. and Economic Resources in an advisory
capacity:
(1) On matters which may be submitted to it by either of them or by the
Commission, including technical questions relating to the development
of rules and regulations, and
(2) On such other matters arising under this Article as the Council conisiders
appropriate. -
(d) Multiple Offices.:- Membership on the Coastal Resources'A&4visory
Council is hereby declared to be an office that may be held concurrently with
other elective or appointive offices (except the office of Commission member)
in addition to the maximum number of offices permitted to be held by oneperson
under G.S. 128-1.1.
. (e) Chairman and Vice-Chairman. - A chairman and vice-chairman 'iall be
elected annually by the Council.
(f) Compensation. -The members of the Advisory Council who are not State
efnployees shall receive per diem and necessary travel and subsistence expenses
in accordance with the provisions'of G.S. 138-5. (1973, c. 1284, s. 1.)
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Part 2. Planning Processes.
� 113A-106. Scope of planning processes. - Planning processes covered by
this Article include the development and adoption of State guidelines for the
coastal area and the development and adoption of a land-use plan for each county
within the coastal area, which plans shall serve as criteria for the issuance or
denial of development permits under Part 4. (1973, c. 1284, s. 1.)
� 113A-107. State guidelines for the coastal area. - (a) State guidelines for
the coastal area shall consist of statements of objectives, policies, and standards
to be followed in public and private use of land and water areas within the coastal
area. Such guidelines shall be consistent with the goals of the coastal area
management system as set forth in G.S. 113A-102. They shall give particular
attention to the nature of development which shall be appropriate within the
various types of areas of environmental concern that may be designated by the
Commission under Part 3. Such guidelines shall be adopted, and may be amended
from time to time, in accordance with the procedures set forth in this section.
(b) The Commission shall be responsible for the preparation, adoption, and
amendment of the State guidelines. In exercising this function it shall be
furnished such staff assistance as it requires by the Secretary of Natural and
Economic Resources and the Secretary of the Department of Administration,
'together with such incidental assistance as may be requested of anyjother State
department or agency.
(c) Within 90 days after July 1, 1974, the Commission shall sublmit proposed
State guidelines to all cities and counties and lead regional organizations within
the coastal area for their comments and recommendations. In addition, it shall
submit such guidelines to all State, private, federal, regional, and local agencies
which it deems to have special expertise with respect to any environmental,
social, economic, esthetic, cultural, or historical aspect of development in the
coastal area. It shall make copies of the proposed guidelines available to the
public through the Department of Administration. : :
(d) Cities, counties, and lead regional organizations and such other agencies
or individuals as desire to do so shall have 60 days from receipt of such proposed
guidelines within which to submit to the Commission their written comments
and recommendations concerning the proposed guidelines.
(e) The Commission shall review and consider all such written comments and
recommendations. Within 210 days after the effective date of this Article, the
Commission shall by rule adopt State guidelines for the coastal area. Certified
copies of such guidelines shall be filed with the Secretary of State and the
principal clerks of the Senate and House, and the guidelines shall be-mailed to
each city, county, and lead regional organization in the coastal area and to sulch
other agencies or individuals as the Commission deems appropriate. Copies :;hall
be made available to the public through the Department of Administration.
(f) The Commission may from time to time amend the State guidelines as it
deems necessary. In addition, it shall review such guidelines each five years;
after July 1, 1974, in accordance with the procedures for adoption of the original
guidelines, to determine whether further amendments are desirable. Any
proposed amendments shall be submitted to all cities, counties, members of the
General Assembly and lead regional organizations in the coastal areas and may
be distributed to such other agencies and individuals as the Commission deems
appropriate. All comments and recommendations of such governments,
agencies, and individuals shall be submitted to the Commission in writing within
30 days of receipt of the proposed amendments. The Commission shalrreview
and consider these written comments and thereupon may by rule reject or adopt
the proposed amendments or modify and adopt the amendments. Certified copies
of all amendments shall be filed with the Secretary of State and the principal
clerks of the Senate and House. Amendments shall thereupon be mailed to each
city, county, members of the General Assembly and lead regional organization
in the coastal area and to such other agencies and individuals as the Commission
deems appropriate. Copies shall be made available to the public through the
Department of Administration. (1973, c. 1284, s. 1.)
� 113A-108. Effect of State guidelines. - All local land-use plans adopted
pursuant to this Article within the coastal area shall be consistent with the State
guidelines. No permit shall be issued under Part 4 of this Article' which is
inconsistent with the State guidelines. Any State land policies governing the
acquisition, use and disposition of land by State departments and ag&ecies shall
take account of and be consistent with the State guidelines adopted urnder this
Article, insofar as lands within the coastal area are concerned. Any State land
classification system which shall be promulgated shall take account of and be
consistent with the State guidelines adopted under this Article, in.sofar as it
applies to lands within the coastal area. (1973, c. 1284, s. 1.)

271

� 113A-109. County letter of intent4 timetable for prepoaratf'#W land-u",
plan. - Within 120 days after July 1, 1974, each county within theoastal area-
shall submit to the Commission a written statement of its intent 't develop a
land-use plan under this Article or its intent not to develop sueh, a' lan. If any-
county states its intent not to develop a land-use plan or fais!&t: submit l
statement of intent within the required period, the Commission shallepare and
adopt a land-use plan for that county. If a county states its:intenti to develop
a land-use plan, It shall complete the preparation and adoption if' such plain
within 480 days after adoption of the State guidelines. In the event of failure
by any county to complete its. required plan within this time, th,' Commission
shall promptly prepare and adopt such a plan. :
In any case where the Commission has adopted a land-use plan 'for a county
that county may prepare its own land-use plan m accordance with the procedures:
of this Article, and upon approval of such plan by the Commi8sWin it shall
supersede the Commission's plan on a date specified by the Comrition. (1973#
c. 1284, s. 1; 1975, c. 452, s. 1.)
� 113A-110. Land-use plans. - (a) A land-use plan for a co1n' 1shall, for the
purpose of this Article, consist of statements of objectives,: policies, and
standards to be followed in public and private use of land within the county,
which shall be supplemented by maps showing the appropriate location of
particular types of land or water use and their relationships to each other and
to public facilities and by specific criteria for particular types of land or water
use in particular areas. The plan shall give special attention to-,th' protection
and appropriate development of areas of environmental concerni designated
under Part 3. The plan shall be consistent with the goals of the coastal area
management system as set forth in G.S. 113A-102 and with the:State guidelines
adopted by the Commission under G.S. 113A-107. The plan shall be4dopted, and
may be amended from time to time, in accordance with the procipdjres set forth
.in this section.
(b) The body charged with preparation and adoption of a coQun.iits land-use
plan (whether the county government or the Commission) may dedegate some
or all of its responsibilities to the lead regional organization for the region of
which the county is a part. Any such delegation shall become effective upon the
acceptance thereof by the lead regional organization. Any counit'yproposing a
delegation to the lead regional organization shall give written noticethereof to
the Commission at least two weeks prior to the date on which such action is to
be taken. Any city or county within the coastal area may also seek theassistance
or advice of its lead regional organization in carrying out any planning activity
under this Article. - -
(c) The body charged with preparation and adoption of a county"'s land-use
plan (whether the county or the Commission or a unit delegated such
responsibility) may either (i) delegate to a city within the county responsibility
for preparing those portions of the land-use plan which affect land'within the
city s zoning jurisdiction or (ii) receive recommendations fr'On the city
concerning those portions of the land-use plan which affect land wit the city's
zoning jurisdiction, prior to finally adopting the plan or any amendments thereto
or (iii) delegate responsibility to some cities and receive recommendations from
other cities in the county. The body shall give written notice to the Commission
of its election among these alternatives. On written application'from a city to
the Commission, the Commission shall require the body to delegate lan-making
authority to that city for land within the city's zoning jurisdiction if the
Commission finds that the city is currently enforcing its zoning ordinance, its
subdivision regulations, and the State Building Code within such jurisdiction.
(d) The body charged with adoption of a land-use plan may eithler'adopt it as
a whole by a single resolution or adopt it in parts by successive resolutions; said
parts may either correspond with major geographical sections or div1Zions of the
county or with functional subdivisions of the subject matters,,'of, the plan.
Amendments and extensions to the plan may be adopted in the',sin'e manner.
(e) Prior to adoption or subsequent amendment of any land-use p}i, the body
charged with its preparation and adoption (whether the coui iy or the
Commission or a unit delegated such responsibility) shall hold a pubic hearing
at which public and private parties shall have the opporti opresent
comments and recommendations. Notice of the hearing shall be'gi not less
than 30 days before the date of the hearing and shall state the d time, and
place of the hearing; the subject of the hearing; the action whicS'!iaproposed;
and that copies of the proposed plan or amendment are availabfor public
inspection at a designated office m the county courthouse duriAigesignated
hours. Any such notice shall be published at least once in a newspaperbf general
circulation in the county. :. __

272

, E(f) No land-use plan shall become finally effective until it haa 'i pproved
by the Commission. The county or other unit adopting the plan :hl!transmit
it; when adopted, to the Commission for review. The Commission.'sb1ll afford
interested persons an opportunity to present objections and commentegarding
the plan, and shall review and consider each county land-use plan ini'light of such
objections and comments, the State guidelines, the requirements of this Article,
and any generally applicable standards of review adopted byrtuIel of the
Commission. Within 45 days after receipt of a county land-i'se plan the
Commission shall either approve the plan or notify the county of tlhf specific
changes which must be made in order for it to be approved. Following such
changes, the plan may be resubmitted in the same manner as the original plan.
(g) Copies of each county land-use plan which has been approvled,`and as it
may have been amended from time to time, shall be maintained&i:in a form
available for public inspection by (i) the county, (ii) the Commission, and (iii) the
lead regional organization of the region which includes the county. (1973, c. 1284,
s. 1.)
� 113A-111. Effect of land-use plan. - No permit shall be issued!under Part
4 of this Article for development which is inconsistent with the approved land-
use plan for the county in which it is proposed. No local ordinance or other local
regulation shall be adopted which, within an area of environmental concern, is
inconsistent with thp land-use plan of the county or city in which it is effective;
any existing local ordinances and regulations within areas of envirdimental
concern shall be reviewed in light of the applicable local land-ukelWan and
modified as may be necessary to make them consistent therewithu, All local
ordinances and other local regulations affecting a county within theoastial area,
but not affecting an area of environmental concern, shall be revi.wed by the
Commission for consistency with the applicable county and city land-Jise plans
and, if the Commission finds any such ordinance or regulation to be ino6nsistent
with the applicable land-use plan, it shall transmit recommendations for
modification to the adopting local government. (1973, c. 1284, s. 14_;_i'
� 113A-112. Planning grants. - The Secretary of Natural anE:lconomic
Resources is authorized to make annual grants to local governme~i'1!hits for
the purpose of assisting in the development of local plans and n gement
programs under this Article. The Secretary shall develop and;: aminister
generally applicable criteria under which local governments may qualify for
such assistance. (1973, c. 1284, s. 1.)
Part 3. Areas of Environmental Concern. � i'
� 113A-113. Areas of environmental concern; in general. - (a) The Coastal
Resources Commission shall by rule designate geographic areas of the coastal
area as areas of environmental concern and specify the boundaries thereof, in
the manner provided in this Part.
(b) The Commission may designate as areas of environmental coneerany one
or more of the following, singly or in combination: '
�(1) Coastal wetlands as defined in G.S. 113-230(a);
(2) Estuarine waters as defined in G.S. 113-229(n)(2), that ismal tl water
of the Atlantic Ocean within the boundary of North 'Carolai:and all
:the waters of the bays, sounds, rivers, and tributaries th "paward
of the dividing line between coastal fishing waters andB:i :.ishing
waters, as set forth in an agreement adopted by the WiIdlif ReSources
Commission and the Department of Natural and Economiources
filed with the Secretary -of State, entitled "Boundary L kr North
Carolina Commercial Fishing - Inland Fishing Waters-',.ised to
March 1,1965";
(3) Renewae if ireas where unconitrolled r tiatible
developmeiit which results in the loss or reduction of cotiiiutd long-
range productivity could jeopardize future water, fodd-or fiber
requirements of more than local concern, which may incluxde;.
a. Watersheds 'or aquifers that are present sources of p:bl]ic water
supply, as identified by the Department of Human eources or
Environmental Management Commission, or that are dlasified for
water-supply use pursuant to G.S. 143-214.1;
b. Capacity use areas that have been declared by the Eny.iinmental
Management Commission pursuant to G.S. 143-215.14(di.(d areas
wherein said Environmental Management Commissio:i';(i(rsuant
to G.S. 143-215.3(d) or 143-215.3(a)(8)) has deterried?:that a
generalized condition of water depletion or waterio'iiii[0llution
exists;
c. Prime forestry land (sites capable of producing 85. culaiifeet per
acre-year, or more, of marketable timber), as identified by the
Department of Natural and Economic Resources.

273

(4) Fragile or historic areas,and other areas containing environmental or
natural resources of more than local significance, where uncontrolled
or incompatible development could result in major or irreversible
damage to important historic, cultural, scientific or scenic values or
natural systems, which may include:
a. Existing national or State parks or forests, wilderness areas, the
State Nature and Historic Preserve, or public recreation areas;
existing sites that have been acquired for any of the same, as
identified by the Secretary of Natural and Economic Resources;
and proposed sites for any of the same, as identified by the
Secretary of Natural and Economic Resources, provided that the
proposed site has been formally designated for acquisition by the
governmental agency having jurisdiction;
b. Present sections of the natural and scenic rivers system;
c. Stream segments that have been classified for scientific or research
uses by the Environmental Management Commission, or that are
proposed to be so classified in a proceeding that is pending before
said Environmental Management Commission pursuant to G.S.
143-214.1 at the time of the designation of the area of
environmental concern;
d. Existing wildlife refuges, preserves or management areas, and
proposed sites for the same, as identified by the Wildlife Resources
Commission, provided that the proposed site has been formally
designated for acquisition (as hereinafter defined) or for inclusion
in a cooperative agreement by the governmental agency having
jurisdiction;
e. Complex natural areas surrounded by modified landscapes that do
not drastically alter the landscape, such as virgin forest stands
within a commercially managed forest, or bogs in an urban
complexL
i Areas that sustain remnant species or aberrations in the landscape
produced by natural forces, such as rare and endangered botanical
or animal species;
g. Areas containing unique geological formations, as identified by the
State Geologist; and
h.' Historic places that are listed, or have been approved for listing by
the N3orthCarolina Historical Commission, in the National Register
of Historic Places pursuant to the National Historic Preservation
Act of 1966; historical, arche ological, and other places and
properties owned, managed or assisted by the State of North
Carolina pursuant to Chapter 121; and properties or areas that are
or may be designated by the Secretary of the Interior as registered
natural landmarks or as national historic landmarks;
(5) Areas such as waterways and lands under or flowed by tidal waters or
navigable waters, to which the public may have rights of access or
public trust rights, and areas which the State of North Carolina may
be authorized to preserve conserve, or protect under Article XIV, Sec.
: ..5 of the North Carolina Constitution:
(6) Natural-hazard areas where uncontrolled or incompatible development
could unreasonably endanger life or property, and other areas
especially vulnerable to erosion, flooding, or other adverse effects of
sand, wind and water, which may include:
a. Sand dunes along the Outer Banks;
b. Ocean and estuarine beaches and shoreline;
c. Floodways and floodplains;
d. Areas where geologic and soil conditions are such that there is a
substantial possibility of excessive erosion or seismic activity, as
identified by the State Geologist;
e. Areas with a significant potential for air inversions, as identified by
the Environmental Management Commission.
(7) Areas which are or may be impacted by key facilities.
(c) In those instances where subsection (b) of this section refers to locations
identified by a specified agency, said agency is hereby authorized to make the
indicated identification from time to time and is directed to transmit the
identification to the Commission; provided, however, that no designation of an
area of environmental concern based solely on an agency identification of a
proposed location may remain effective for'longer than three years unless, in
the case of paragraphs (4)a and d of subsection (b) of this section, the proposed
site has been atleast seventy-five percent (75%) acquired. Within the meaning
of this section, "formal designation for acquisition" means designation in a
formal resolution adopted by the governing body of the agency having
jurisdiction (or by its chief executive, if it has no governing body), together with
a direction in said resolution that the initial step in the land acquisition process
be taken (as by filing an application with the Department of Administration to
acquire property pursuant to G.S. 146-23).
(d) Additional- grounds for designation of areas of environmental concern are
prohibited unless enacted into law by a3 Aet of the General Assembly.

� 113A-114. Designation of interim areas of environmental concern;
notice of developments within such areas. - (a) Pending the designation of
areas of environmental concern pursuant to G.S. 113A-115, the Commission may
by rule designate such interim areas of environmental concern (hereafter
referred to as "interim areas") as it deems appropriate.
(b) Not earlier than 15 days nor later than 75 days after July 1, 1974, the
Secretary of Natural and Economic Resources, or his designee or designees,
shall hold a one-day public hearing, at which public and private parties shall have
the opportunity to present views and comments concerning proposed interim
areas, in each of the following cities: Elizabeth City, Jacksonville, Manteo,
Morehead City, Washington and Wilmington. The following provisions shall
apply for all such hearings:
(1) The hearing shall begin with a description of interim areas proposed by
the Secretary.
(2) Notice of any such hearing shall be given not less than seven days before
the (late of such hearing and shall state the date, time and place of the
hearing, the subject of the hearing and the action to be taken. The notice
shall state that a copy of a description of interim areas proposed by the
Secretary (including a map of such proposed areas) is available for
public inspection at the county courthouse of each county affected.
(3) Any such notice shall be published one time in a newspaper of general
circulation in the county or counties affected at least seven days before
the date of the public hearing.
(4) Any person who desires to be heard at such public hearing shall give
notice thereof in writing to the Secretary on or before the date set for
the hearing. The Secretary is authorized to set reasonable time limits
for the oral presentation of views by any one person at any such
hearing. The Secretary shall permit anyone who so (ld!sires to file a
written argurment or other statement with him in relatioll to proposed
interim areas within five days following the conclusion of any public
hearing or within such addit.ioal time as he may allow in his discretion.
(5) A record of each such hearing shall be presented to the Commission by
the Secretary, together with the description of interim areas proposed
by the Secretary (with such revisions as he deems appropriate in light
of the hearings). Upon receipt of said hearing records and description,
and consideration of submitted evidence and arguments with respect
to any proposed action pursuant to this section, the Commission shall
adopt its final action with respect thereto and shall file a duly certified
copy thereof with the Secretary of State and with the board of
commissioners of each county affected thereby.
(c) The (Comnmission may revise the interim areas (or any part thereof) at any
time in the manner provided by subsection (b) of this section, except that the
hearing or hearings shall be held in each county in which lands to be affected
are located.
(d) The interim areas (with such revisions as may be made pursuant to this
section) shall remain in effect until designation of areas of environmental
concern are made purusuant to G.S. 113A-115.
(e) During the period while interim areas are in effect, any person proposing
to undertake any development in an interim area shall notify the Commission
at least 60 days in advance of initiating construction, installation or other
land- or water-dis.turbing activity in connection with said development.
� 113A-115. Designation of areas of environmental concern. - (a) Prior to
adopting any rule permanently designating any area of environmental concern
theSecretary and the Commission shall hold a public hearing in each county in
which lands to be affected are located, at which public and private parties shall
have the opportunity to present comments and views. The following provisions
shall apply for all such hearings:
(1) Notice of any such hearing shall be given not less than 30 days before
the date of such hearing and shall state the date, time and place of the
hearing, the subject of the hearing, and the action to be taken. The
notice shall specify that a copy of the description of the area or areas
of environmental concern proposed by the Secretary is available for
public inspection at the county courthouse of each county affected.
(2) Any such notice shall be published at least once in one newspaper of
general circulation in the county or counties affected at least 30 days
before the date on which the public hearing is scheduled to begin.
(3) Any person who desires to be heard at such public hearing shall.give
notice thereof in writing to the Secretary on or before the firstWate
set for the hearing. The Secretary is authorized to set reasonable time
limits for the oral presentation of views by any one person at ny such
hearing. The Secretary shall permit anyone who so desires tb file a
written argument or other statement with him in relation to any
proposed plan any time.within 30 days following the conclusion of any
public hearing or within such additional time as he may allow by ;otice
given as prescribed in this section.
275 . ,

(4) Upon completion of the hearing and consideration of submitted evidence
and arguments with respect to any proposed action pursuant to this
section, the Commission shall adopt its final action with respect thereto
and shall file a duly certified copy thereof with the Secretary of State
and with the board of commissioners of each county affected thereby.
(b) In addition to the notice required by G.S. 113A-ll1(a)(2) notice shall be
given to any interested State agency and to any citizen or group that has filed
a request to be notified of a public hearing to be held under this section.
(c) The Conmission shall review the designated areas of environmental
concern at least biennially. New areas may be designated and designated areas
mnay be deleted, iI accordance with the same procedures as apply to the original
deslignations of areas under this section. Areas shall not be deleted unless it is
found that the conditions upon which the original designation was based shall
have been found to be substantially altered. (1973, c. 1284, s. 1.)
Part 4. Permit Letting and Enforcement.
� 113A-116. Local government letter of intent. - Within two years after
July 1, 1974, each county and city within the coastal area shall submit to the
Commission a written statement of its intent to act, or not to act, as a permit-
letting agency under G.S. 118A-121. If any city or county states its intent not
to act as a permit-letting agency or fails to submit a statement of intent within
the required period, the Secretary of Natural and Economic Resources shall
issue permits therein under G.S. 113A-121; provided that a county may submit
a letter of intent to issue permits in any city within said county that disclaims
its intent to issue permits or fails to submit a letter of intent. Provided, however,
should any city or county fail to become a permit-letting agency for any reason
but shall later express its desire to do so, it shall be permitted by the Coastal
Resources Commission to qualify as such an agency by following the procedure
herein set forth for qualification in the first instance. (1973, c. 1284, s. 1; 1975,
c. 452, s. 2.)
� 113A-117. Implementation and enforcement programs. - (a) The
Secretary of Natural and Economic Resources shall develop and present to the
Commission for consideration and to all cities and counties and lead regional
organizations within the coastal area for comment a set of criteria for local
implementation and enforcement programs. In the preparation of such criteria,
the Seeretary shall emphasize the necessity for the expeditious processing of
permit applications, Said criteria may contain recommendations and guidelines
as to the procedures to be followed in developing local implementation and
enforcement programs, the scope and coverage of said programs, minimum
standards to be lescribed in said programs, staffing of permit-letting agencies,
pernit~letting piocedures, and priorities of regional or statewide concern. Within
20 months after July 1, 1974, the Commisslon shall adopt and transmit said
criteria (with any revisions) to each coastal-area county and city that has filed
an applicable letter of intent, for its guidance.
(b)1he--overning body of each city in the coastal area that filed an
affirmativeletter of intent shall adopt an implementation and enforcement plan
with respect to its zoning area within 36 months after July 1 1974. The board
of commissioners of each coastal-area county that filed an affirmative letter of
intent shall adopt an implementation plan with respect to portions of the county
outside city zoning areas within 36 months after July 1, 1974, provided, however,
that a county implementation and enforcement plan may also cover city
jurisdictions for those cities within the counties that have not filed affirmative
letters of intent pursuant to G.S. 113A-116. Prior to adopting the implementation
and enforcement program the local governing body shall hold a public hearing
-at which public and private parties shall have the opportunity to present
commlllents and views. Notice of the hearing shall be given not less than 15 days
cl'ore the (late of the hearing, and shall state the date, time and place of the
hlearing, the subject of the hearing, and the action which is to be taken. The
no(tice shall state that copies of the proposed implementation and enforcement
i,'ogram are asvailable for public inspection at the county courthouse. Any such
,.otice shall be published at least once in one newspaper of general circulation
in the county at least 15 days before the date on which the public hearing is
scheduled to begin.
It) Each coastal-area county and city shall transmit its implementation and
,nlforcement program when adopted to the Commission for review. The
(olmnission shall atfford interested persons an opportunity to present objections
uLlld comments regarding the program, and shall review and consider each local
implementation and enforcement program submitted in light of such objections
and comments, the Commission's criteria and any general standards of review
applicable throughout the coastal area as may be adopted by the Commission.
Within 45 days after receipt of a local implementation and enforcement program
the Commission shall either approve the program or notify the county or city
of the specific changes that must be made in order for it to be approved.
Following such changes, the program may be resubmitted in the same manner
as the original program.
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(d) If the Ciimmission determines that any local government is failing to
adfiiriister or enforce an approved implementation and enforcement program,
it shall notify the local government in writing and shall specify the deficiencies
of administration and enforcement. If the local government has not taken
corrective action within 90 days of receipt of notification from the Commission,
the Commission shall assume enforcement of the program until such time as
the local government indicates its willingness and ability to resume
administration and enforcement of the program. (1973, c. 1284, s. 1.)
� 113A-118. Permit required. - (a) After the date designated by the
Secretary of Natural and Economic Resources pursuant to G.S. 113A-126, every
perSon before undertaking any development in anyarea of environmental
concern shall obtain (in addition to any other required State or local permit) a
permit pursuant to the provisions of this Part.
0b) Under the expedited procedure provided for by G.S. 113A-121, the permit
shall be obtained from the appropriate city or county for any minor development;
provided, that if the city or county has not developed an approved
h1lementation and enforcement program, the permit shall be obtained from the
S retary of Natural and Economic Resources.
c) Under the quasi-judicial procedure provided for by G.S. 113A-122, the
petnit shall be obtained from the Commission.
'(d) Within the meaning of this Part:
i !(1) A "major development" is any development which requires permission,
licensing, approval, certification or authorization in any form from the
Environmental Management Commission, the Department of Human
Resources, the State Department of Natural and Economic Resources,
the State Department of Administration, the North Carolina Mining
Commission, the North Carolina Pesticides Board, or the North
Carolina Sedimentation Control Board; or which occupies a land or
water area in excess of 20 acres; or which contemplates drilling for or
excavating natural resources on land or under water; or which occupies
on a single parcel a structure or structures in excess of a ground area
of 60,000 square feet.
(2) A "minor development" is any development other than a "major
' development."
(e) If, within the meaning of G.S. 113A-103(5)b3, the siting of any utility
facility for the development, generation or transmission of energy is subject to
regulation under this Article rather than by the State Utilities Commission or
by other law, permits for such facilities shall be obtained from the Coastal
Resources Commission rather than from the appropriate city or county. (1973,
c. 476, s. 128; c. 1262, ss. 23,. 33; c. 1284, s. 1.)
9 ii'A-119. Permit applications generally. - (a) Any person required to
obtain a permit under this Part shall file with the Secretary of Natural and
Economic Resources and (in the case of a permit sought from a city or county)
with the designated local official an application for a permit in accordance with
the form and content designated by the Secretary and approved by the
Commission. The applicant must submit with the application a check or money
order payable to the Department or the city or county, as the case may be,
conistitutmg a reasonable fee (not to exceed twenty-five dollars ($25.00)) set by
the Commission to cover the administrative costs in processing the said
application.
(b) Upon receipt of an application, the Secretary shall issue public notice of
the proposed development (i) by mailing a copy of the application, or a brief
description thereof together with a statement indicating where a detailed copy
of the proposed development may be inspected, to any citizen or group which
has filed a request to be notified of the proposed development, and to any
interested State agency; (ii) by posting or causing to be posted a copy of the
application at the location of the proposed development; and (iii) by publishing
notice of the application at least once in one newspaper of general circulation
in the county or counties wherein the development would be located at least
seven days before final action on a permit under G.S. 113A-121 or before the
beginning of the hearing on a permit under G.S. 1.13A-122. The notice shall set
out that any comments on the development should be submitted to the Secretary
by a specified date, not.to exceed 15 days from the date of the newspaper
publication of the notice. Public notice under this subsection is mandatory.
(c) Within the meaning of this Part, the "designated local official" is the
official who has been designated by the local governing body to receive and
consider permit applications under this Part. (1973, c. 1284, s. 1.)
� 113A-120. Grant or denial of permits. - (a) After consideration of
submitted evidence and arguments submitted at the hearing, or otherwise in the
case where no hearing was conducted, the responsible official or body shall deny
the application for permit upon finding:
(1) In the case of coastal wetlands, that the development would contravene
an order that has been or could be issued pursuant to GS, �18-230.
(2) In the case of estuarine waters, that a permit for the development would
be denied pursuant to G.S. 113-229(e).
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(3) In the case of a renewable resource area, that the development will
result in loss or significant reduction of continued long-range
productivity that would jeopardize one or more of the watei, food or
fiber requirements of more than local concern identified in paragraphs
a to c of subsection (b)(3) of G.S. 113A-113.
(4) In the case of a fragile or historic area, or other area containing
environmental or natural resources of more than local significance, that
the development will result in major or irreversible damage to one or
more of the historic, cultural, scientific, environmental or scenic values
or natural systems identified in paragraphs a to h of subsection (b)(4)
of G.S. 113A-113.
(5) In the case of areas covered by G.S. 113A-113(4) [G.S. 113A-113(b)(4)j,
that the development will jeopardize the public rights or interests
specified in said subdivision.
(6) In the case of natural hazard areas, that the development would occur
in one or more of the areas identified in paragraphs a to e of subsection
(b)(6) [of G.S. 113A-113] in such a manner as to unreasonably endanger
life or property.
(7) In the case of areas which are or may be impacted by key facilities, that
the development is inconsistent with the State guidelines or the local
land-use plans, or would contravene any of the provisions of
subdivisions (1) to (6) of this subsection.
(8) In any case, that the development is inconsistent with the State
guidelines or the local land-use plans.
(b) In the absence of such findings, a permit shall be granted. The permit may
be conditioned upon the applicant's amending his proposal to take whateve;r
measures are reasonably necessary to protect the public interest with respect
to the factors enumerated in subsection (a) of this section.
(c) Variances. - Any person may petition the Commission for a variance
granting permission to use his land in a manner otherwise prohibited by rules,
regulations, standards or limitations prescribed by the Commission, or orders
issued by the Commission, pursuant to this Article. When it finds that (i)
practical difficulties or unnecessary hardships would result from strict
application of the guidelines, rules, regulations, standards, or other restrictions
applicable to the property, (ii) such difficulties or hardships result from
conditions which are peculiar to the property involved, (iii) such conditions could
not reasonably have been anticipated when the applicable guidelines, rules,
regulations, standards, or restrictions were adopted or amended, the
Commission may vary or modify the application of the restrictions to the
property so that the spirit, purpose, and intent of the restrictions are preserved,
public safety and welfare secured, and substantial justice preserved. In varying
such regulations, the Commission may impose reasonable and appropriate
conditions and safeguards upon any permit it issues. The Commission may
conduct a hearing within 45 days from the receipt of the petition and shall notify
such persons and agencies that may have an interest in the subject matter of
the time and place of the hearing. (1973, c. 1284, s. 1.)
� 113A-121. Permits for minor developments under expedited procedures.
-(a) Applications for permits for minor developments shall be expeditiously
processed so as to enable their promptest feasible disposition.
(b) In cities and counties that have developed approved implementation and
enforcement programs, applications for permits for minor developments shall
be considered and determined by the designated local official of the city or
county as the case may be. In cities and counties that have not developed
approved implementation and enforcement programs, such applications shall be
considered and determined by the Secretary of Natural and Economic
Resources.
(c) Failure of the Secretary or the designated local official (as the case may
be) to approve or deny an application for a permit for a minor development within
30 days from receipt of application shall be treated as approval of such
application, except that the Secretary or the designated local official (as the case
may be) may extend such deadline by not more than an additional 30 days if
necessary properly to consider the application. No waiver of the foregoing time
limitation (or of the time limitation established in G.S. 113A-122(c)) shall be
required of any applicant.
(d) Any person who is directly affected by the decision of the Secretary or
the designated local official (as the case may be) to grant or deny an application
for minor development permit may request within 20 days of such action, a
hearing before the Commission. In the case of a grant or denial of a permit by
a local official, the Secretary shall be considered to be a person affected by the
decision. Pending final disposition of any such appeal, no action shall be taken
which would be unlawful in the absence of a permit issued under this section.
(1973, c. 1284, s. 1.)

278

� 113A-122. Permits under quasi-judicial procedures. - (a) The procedure
set forth in this section applies to all permit applications for major developments,
as well as to permit applications for minor developments whose disposition was
appealed under G.S. 113A-121(d). All permit applications subject to this section
shall be heard by the Commission.
(b) The following provisions shall be applicable in connection with hearings
pursuant to this section:
(1) Any hearing held pursuant to this section shall be held upon not less
than 30 days' written notice given by the Commission to any person who
is a party to the proceedings with respect to which such hearing is to
be held, unless a shorter notice is agreed upon by all such parties.
(2) All hearings under this section shall be open to the public. Any person
to whom a delegation of power is made to conduct a hearing shall report
the hearing with its evidence and record to the Commission for decision.
(3) A full and complete record of all proceedings at any hearing under this
section shall be taken by a reporter appointed by the Commission or
by other method approved by the Attorney General. Any party to a
proceeding shall be entitled to a copy of such record upon the payment
of the reasonable cost thereof as determined by the Commission.
(4) The Commission and its duly authorized agents shall follow generally
the procedures applicable in civil actions in the superior court insofar
as practicable, iicluding rules and procedures with regart;o the taking
and use of depositions, the making and use of stipulations, and the
entering into of agreed settlements and consent orders. :
(5) The Commission and its duly authorized agents may administer oaths
and may issue subpoenas for the attendance of witnesses and the
production of books, papers, and other documents belonging to the said
person.
(6j Subpoenas issued by the Commission in connection with any iihearing
under this section shall be directed to any officer authorized by law to
serve process, and the further procedures and rules of law applicable
with respect thereto shall be prescribed in connection with subpoenas
to the same extent as if issued by a court of record. In case of a refusal
to obey a subpoena issued by the Commission, application may be made
to the superior court of the appropriate county for enforcement thereof.
(7) The burden of proof at any hearing under this section on appeal
pursuant to G.S. 113A-121(d) shall be upon the Secretary. The burden
of proof at any hearing under this section on a permit application for
a major development shall be upon the applicant. The provisions of this
paragraph shall apply only to the hearings specified in this paragraph.
(8) No decision or order of the Commission shall be made in any proceeding
unless the same is supported by competent, material, and substantial
evidence upon consideration of the whole record.
(9) Following any hearing, the Commission shall afford the parties thereto
an opportunity to submit within 30 days, or within such additional time
as prescribed by the Commission, proposed findings of fact and
conclusions of law and any brief in connection therewith.
(10) After hearing the evidence, the Commission shall grant or deny the
permit in accordance with the provisions of G.S. 113A-120. All such
orders and decisions of the Commission shall set forth separately the
Commission's findings of fact and conclusions of lawv and shall,
wherever necessary, cite the appropriate provision of law or other
source of authority on which any action or decision of the Commission
is based.
(11) The Commission shall have the authority to adopt a seal which shall
be the seal of said Commission and which shall be judicially noticed by
the courts of the State. Any document, proceeding, order, decree,
special order, rule, regulation, rule of procedure or any other official
act or records of the Commission or its minutes may be certified by the
Executive Director under his hand and the seal of the Commission and
when so certified shall be received in evidence in all actions or
proceedings in the courts of the State without further proof of the
identity of the same if such records are competent, relevant and
material in any such action to proceedings. The Commission shall have
the right to take judicial notice of all studies, reports, statistical data
or any other official reports or records of the federal government or
of any sister state and all such records, reports and data may be placed
in evidence by the Commission or by any other person or interested
party where material, relevant and competent.
(c) Failure of the Commission to approve or deny an application for a permit
(or to dispose of an appeal) pursuant to this section within 90 days from receipt
of application or notice of appeal shall be treated as approval of such application
or of the action appealed from, as the case may be, except that the Commissio:?
may extend such deadline by not more than an additional 90 days if necessary
properly to consider the application or the appeal.
279

(d) All notices which are required to be given by the Secretary or Commission
or by any party to a proceeding under this section shall be iven bv registered
or. certifiedrmail t- -allpersons-entitled thereto. The date of refusal
for such registered or certified mail shall be the date when such notice is deemed
to have been given. Notice by the Commission may be given to any person upon
whom a summons may be served in accordance with the provisions of law
covering civil actions in the superior courts of this State. The Commission may
prescribe the form and content of any particular notice. (1973, c. 1284, s. 1.)
� 113A-123. Judicial review. - (a) Any person directly affected by any final
decision or order of the Commission under this Part may appeal such decision
or order to the superior court of the county where the land or any part thereof
is located, pursuant to the provisions of chapter 150[A] of the General Statutes.
Pending final disposition of any appeal, no action shall be taken which would
be unlawful in the absence of a permit issued under this Part.
(b) Any person having a recorded interest or interest by operationi,f law in
or registered claim to land within an area of environmental concern affected by
any final decision or order of the Commission under this Part may, within 90
days after receiving notice thereof, petition the superior court to determine
whether the petitioner is the owner of the land in question, or an interest,
therein, and in case he is adjudged the owner of the subject land, or an interest
therein, the court shall determine whether such order so restricts the use of his
property as to deprive him of the practical uses thereof, being not otherwise
authorized by law, and is therefore an unreasonable exercise of the police power
because the order constitutes the equivalent of taking without compensation.
The burden of proof shall be on petitioner as to ownership and the burden of
proof shall be on the Commission to prove that the order is not an unreasonable
exercise of the police power, as aforesaid. Either party shall be entitled to a jury
trial on all issues of fact, and the court shall enter a judgment in accordance
with the issues, as to whether the Commission order shall apply to the land of
the petitioner. The Secretary of Natural and Economic Resources shall cause
a copy of such finding to be recorded forthwith in the register of deeds office
in the county where the land is located. The method provided in this subsection
for the determination of the issue of whether such order constitutes a taking
without compensation shall be exclusive and such issue shall not be determined
in any other proceeding. Any action authorized by this subsection shall he
calendared for trial at the next civil session of superior court after the summons
and complaint have been served for 30 days, regardless of whether issues were
joined more than 10 days before the session. It is the duty of the presiding judge
to expedite the trial of these actions and to give them a preemptory setting over
all others, civil or criminal. From any decision of the superior court either party
may appeal to the court of appeals as a matter of right.
(c) After a finding has been entered that such order shall not apply to certain
land as provided in the preceding subsection, the Department of Administration,
upon the request of the Commission and upon finding that sufficient funds are
available therefor, and with the consent of the Governor and Council of State
may take the fee or any lesser interest in such land in the name of the State
by eminent domain under the provisions of Chapter 146 of the General Statutes
and hold the same for the purposes set forth m this Article. (1973, c. 1284, s.
1; c. 1331, s. 3.) Editor's Note. effective date of rte 1973 act from July 1, 1975,
Session Laws 1975, c. 69, s. 4, amends Session to Feb. 1, 197 ,
Laws 1973, c. 1331, s. 4, so as to change the

� 113A-124. Additional powers and duties. - (a) The Secretary of Natural
and Economic Resources shall have the following additional powers and duties
under this Article:
-(1) To conduct or cause to be conducted, .investigations of iproposed
developments in areas of environmental concern in order to obtain
sufficient evidence to enable a balanced judgment to be rendered
concerning the issuance of permits to build such developmedts;
(:) To cooperate with the Secretary of the Department of Admiitration
X in drafting State guidelines for the coastal area. � ::. :'ii
(3) To keep a list of interested persons who wish to be notified 0f proposed
developments and proposed rules designating areas of enViritfinental
concern and to so notify these persons of such proposed developments
by regular mail. A reasonable registration fee to defray the cost of
handling and mailing notices may be charged to any person who so
registers with the Commission.
(4) To propose rules and regulations to implement this' Ariicle for
consideration by the Commission. .

280

(5) To delegate such of his powers as he may deem appropriate to one or
more qualified employees of the Department of Natural and Economic
Resources or to any local government, provided that the provisions of
any such delegation of power shall be set forth in departmental
regulations.
(6) To delegate the power to conduct a hearing, on his behalf, to arny
member of the Commission or to any qualified employee of the
Department of Natural and Economic Resources. Any person to whom
a delegation of power is made to conduct a hearing shall report his
recommendations with the evidence and the record of the hearing to
the Secretary for decision or action.
(b) In order to carry out the provisions of this Article the secretaries of
administration and of Natural and Economic Resources may employ such
clerical, technical and professional personnel, and consultants with such
qualifications as the Commission may prescribe, in accordance with the State
personnel regulations and budgetary laws, and are hereby authorized to pay
such personnel from any funds made available to them through grants,
appropriations, or any other sources. In addition, the said secretaries Inmay
contract with any local governmental unit or lead regional organization to calrr-
out the planning provisions of this Article.
(c) The Commission shall have the following additional powers and duties
under this Article:
(1) To recommend to the Secretary of Natural and Economic Resources the
acceptance of donations, gifts, grants, contributions and appropriations
from any public or private source to use in carrying out the provisions
of this Article.
(2) To recommend to the Secretary of Administration the acquisition by
purchase, gift, condemnation, or otherwise, lands or any interest in anvy
lands within the coastal area.
(3) To hold such public hearings as the Commission deems appropriate.
(4) To delegate the power to conduct a hearing, on behalf of the
Commission, to any member of the Commission or to any qualified
employee of the Department of Natural and Economic Resources. Any
person to whom a delegation of power is made to conduct a hearing
shall report his recommendations with the evidence and the record of
the hearing to the Commission for decision or action.
(5) To adopt from time to time and to modify and revoke official regulations
interpreting and applying the provisions of this Article and rules of
procedure establishing and amplifying the procedures to be followed
in the administration of this Article.
(d) The Attorney General shall act as attorney for the Commission and shall
initiate actions in the name of, and at the request of, the Commission, and shall
represent the Commission in the hearing of any appeal from or other review of
any order of the Commission. (1973, c. 1284, s. 1.)
� 113A-125. Transitional provisions. - (a) Existing regulatory permits shall
continue to be administered within the coastal area by the agencies presently
responsible for their administration until a date (not later than 44 months after
July 1, 1974), to be designated by the Secretary of Natural and Economic
Resources as the permit changeover date. Said designation shall be effective
from and after its filing with the Secretary of State.
(1975. c. 452. s. 4.3
(b) From and after the "permit changeover date," all existing regulatory
permits within the coastal area shall be administered in coordination and
consultation with (but not subject to the veto of) the Commission. No such
existing permit within the coastal area shall be issued, modified, renewed or
terminated except after consultation with the Commission. The provisions of this
subsection concerning consultation and coordination shall not be interpreted to
authorize or require the extension of any deadline established by this Article
or any other law for completion of any permit, licensing, certification or other
regulatory proceedings.
(c) Within the meaning of this section, "existing regulatory permits" include
dredge and fill permits issued pursuant to G.S. 113-229; sand dune permits issued
pursuant to G.S. 104B-4; air pollution control and water pollution control
permits, special orders or certificates issued pursuant to G.S. 143-215.1 and
143-215.2, or any other permits, licenses, authorizations, approvals or
certificates issued by the Board of Water and Air Resources pursuant to Chapter
143; capacity use area permits issued pursuant to G.S. 143-215.15; final approval
of dams pursuant to G.S. 143-215.30; floodway permits issued pursuant to G.S.
143-215.54; water diversion authorizations issued pursuant to G.S. 143-354(c);
oil refinery permits issued pursuant to G.S. 143-215.99; rining operating per-
mits issued pursuant to G.S. 74-51; permissions for construction of wells issued

281

pursuant to G.S. 87-88; restricted-use pesticide permits issued pursuant to G.S.
143-440(b), pesticide applicator licenses issued pursuant to G.S. 143-452 for
persons who may apply pesticides within the coastal area, and regulations
concerning pesticide application within the coastal area issued pursuant to G.S.
143-458; approvals by the Department of Human Resources of plans for water
supply, drainage or sewerage, pursuant to G.S. 130-161.1 and 130-161.2;
stand'ards and approvals for solid waste disposal sites and facilities, adopted by
the Department of Human Resources pursuant to Chapter 130, Article 13B;
permits relating to sanitation of shellfish, crustacea or scallops issued pursuant
to Chapter 130, Articles 14A or 14B; permits, approvals, authorizations and
regulations issued by the Department of Human Resources pursuant to Articles
23 or 24 of Chapter 130 with reference to mosquito control programs or districts;
any permits, licenses, authorizations, regulations, approvals or certificates
issued by the Department of Human Resources relating to septic tanks or water
wells; oil or gas well regulations and orders issued for the protection of
environmental values or resources pursuant to G.S. 113-391; a certificate of
public convenience and necessity issued by the State Utilities Commission
pursuant to Chapter 62 for any public utility plant or system, other than a carrier
of persons or property; permits, licenses, leases, options, authorization or
approvals relating to the use of State forestlands, State parks or other state-
owned land issued by the State Department of Administration the State
Department of Natural and Economic Resources or any other State department,
agency or institution; any approvals of erosion control plans that may be issued
by the North Carolina Sedimentation Control Commission pursuant to G.S.
113A-60 or 113A-61; and any permits, licenses, authorizations, regulations,
approvals or certificates issued by any State agency pursuant to any
environmental protection legislation not specified in this subsection that may be
enacted prior to the permit changeover date. Editor's Note.-Section j8O-li(.2, referred
to in subsection (c) of tbis, sctioll, dls not exist.
(d) The Commission shall conduct continuing studies addressed to developing
a better coordinated and more unified system of environmental aid land-use
permits in the coastal area, and shall report its recommendations thereon from
time to time to the General Assembly. Specifically, the Commission A]I report
'to the 1975 General Assembly recommended procedures to implement the
requirement of subsection (b) of this section for administration of existing
regulatory permits within the coastal area in coordination and consultation with
the Commission. In its 1975 recommendations, the Commission shall seek to
develop procedures that are administratively practicable, that are not unduly
burdensome for the affected agencies, and that are adapted to the circumstances
of each agency, taking into account the volume of permits issued, the location
of the regulated activity (whether or not within or near an area of environmental
concern), the significance of the environmental consequences of the regulated
activity, and the scheduling problems anId needs of the regulatory agency:
Provided, however, that no consultation or coordination shall be required in
advance of issuance of individual pesticide applicator licenses, but only periodic
consultation concerning the overall effect of the applicator licensing program
within the coastal area. In its 1975 recommendations, the Commission ihall also
evaluate the desirability of legislation to provide for coordiiation of
environmental permits at the option of permit applicants. In developing its 1975
recommendations, the Commission shall meet with all'affected State agencies
and shall hold one or more public hearings concerning its recommendations.
(1973, c. 1284. s. 1.)
� 113A-126. Injunctive relief and penalties. ' (a) Upon violation ofany of
the provisions of this Article or of any regulation, rule or order adopted under
the authority of this Article the Secretary may, either before or after the
institution of proceedings for the collection of any penalty imposed by this
Article for such violation, institute a civil action in the General Court of Justice
in the name of the State upon the relation of the Secretary for injunctive relief
to restrain the violation and for such other or further relief in the premises as
said court shall deem proper. Neither the institution of the action nor any of the
proceedings thereon shall relieve any party to such proceedings from any
penalty prescribed by this Article for any violation of same.
(b) Upon violation of any of the provisions of this Article relating to permits
for minor developments issued by a local government, or of any regulation, rule
or order adopted under the authority of this Article relating to such permits,
the designated local official may, either before or after the institution of
proceedings for the collection of any penalty imposed by this Article for such
violation, institute a civil action in the General Court of Justice in the name of
the affected local government upon the relation of the designated local official
for injunctive relief to restrain the violation and for such other and further relief
in the premises as said court shall deem proper. Neither the institution of the
action nor any of the proceedings thereon shall relieve any party Hi such
proceedings from any penalty prescribed by this Article for any violation of
same.
282

(c) Any person who shall be adjudged to have knowingly or willfully violated
any provision of this Article, or any regulation, rule or order adopted pursuant
to this Article, shall be guilty of a misdemeanor, and for each violation shall be
liable for a penalty of not less than one hundred dollars ($100.00) nor more than
one thousand dollars ($1,000) or shall be imprisoned for not more than 60 days,
or both. In addition, if any person continues to violate or further violates, any
such Drovision. regulation, rule or order after written notice from thPo SCerpot-'v
or (in the case of a permit for a minor development issued by a local government)
written notice from the designated local official, the court may determine that
each day during which the violation continues or is repeated constitutes a
separate violation subject to the foregoing penalties.
(d) (1) A civil penalty of not more than one thousand dollars ($1,000) may be
assessed by the Commission against any person who:
a. Is required but fails to apply for or to secure a permit required by
G.S. 113A-122, or who violates or fails to act in accordance with
the terms, conditions, or requirements of such permit.
b. Fails to file, submit, or make available, as the case may be, any
documents, data or reports required by the Commission pursuant
to this Article.
c. Refuses access to the Commission or its duly designated
representative, who has sufficiently identified himself by
displaying official credentials, to any premises, not including any
occupied dwelling house or curtilage, for the purpose of conducting
any investigations provided for in this Article.
d. Violates any duly adopted regulation of the Commission
implementing the provisions of this Article. Provided, however,
that this paragraph d shall not apply to regulations relating to
minor developments.
(2) If any action or failure to act for which a penalty may be assessed under
this subsection is willful, the Commission may assess a penalty not to
exceed one thousand dollars ($1,000) for each separate violation, after
the first assessment, provided, however, no penalty shall be imposed
under this subsection pending court review of the first assessment, if
appealed pursuant to subdivision (3).
(3) The Commission may assess the penalties provided for in this
subsection. When the Commission proposes to assess a penalty, it shall
notify the person whom it proposes to assess by registered or certified
mail of the proposal to assess a penalty, and the notice shall specify
the reason for assessment and the date of the proposed hearing when
assessment is to be determined. The hearing shall be no sooner than
15 clays after the mailing of notice of the proposed assessment. Any
hearing shall be based upon competent evidence, and the person the
Commission proposes to assess shall be allowed to present evidence,
and the hearing shall be reportdd. The person assessed may apply to
the superior court of the county where such person resides for review
of the hearing and assessment and the scope of the court's review of
the Commission's action (which shall include a review of the amount
of the assessment), shall be as provided in G.S. 143-315. If the person
assessed fails to pay the amount of the assessment to the I)epartment
of Natural and Economic Resources within 30 days after receipt of
notice, or such longer period, not to exceed 180 days, as the Commission
may specify, the Commission may institute a civil action in the superior
court of the county in which the violation occurred or, in the discretion
of the Commission in the superior court of the county in which the
person assessed resides or has his or its principal place of business, to
recover the amount of the assessment. In any such civil action, the
scope of the court's review of the Commission's action (which shall
include a review of the amount of the assessment), shall be as provided
in G.S. 143-315.
(4) In determining the amount of the penalty the Commission shall consider
the degree and extent of harm caused by the violation and the cost of
rectifying the damage. (1973, c. 1284, s. 1.)
� 113A-127. Coordination with the federal government. - All State
agencies shall keep informed of federal and interstate agency plans, activities,
and procedures within their area of expertise that affect the coastal area. Where
federal or interstate agency plans, activities or procedures conflict with State
policies, all reasonable steps shall be taken by the State to preserve the integrity
of its policies. (1973, c. 1284, s. 1.)
� 113A-128. Protection of landowners' rights. - Nothing in this: Article
authorizes any governmental agency to adopt a rule or regulation or issue any
order that constitutes a taking of property in violation of the Constitutionaqf this
State or, of the United States. (1973, c. 1284, s. 1.)
283

NOTE: Other State Programs

The responsibility for protecting the nation's shorelines and
wetlands lies primarily with the states. Current responses to
increased environmental concern and to incentive programs, such as
the federal Coastal Lone Management Act of 1972, supra, range from
comprehensive reorganization of state government structures to
statutory bans on particularly disruptive development.

Washington

The State of Washington enacted the Shorelines Management Act,
Wash. Rev. Code 90 .5b .101 et sew., in 1971, as part of one of the
first comprehensive schemes designed to manage activities affecting
the environment. The newly created Department of Ecology not only
received responsibility for the shoreline management program ano
the environmental impact program, but also incorporated the pre-
viously separate Department of Water Resources, the Water Pollution
Control Commission and the air quality and solid wastes sections
of the Department of Health. The Act is a statewide management
effort, for it applies not only to coastal areas but to all shore-
lines within the state. These are defined to include all water
areas and wetlands, except streams and associated wetlands upstream
of a point where the mean annual flow is twenty cubic feet per second
or less, and lakes of twenty acres or less, Wash. Rev. Code 90.5b.
030(2)(d)-. Contrast this approach with the scheme of North Carolina's
Coastal Area Managdnlnt Act, supra.

The central mechanism of Washington's Act is a four step plan-
ning process, with power systematically allocated between local and
state governments. Local governments first conduct shoreline inven-
tories, surveying public and private land use patterns, natural land
characteristics and present and projected land uses, Wash. Rev. Code
90.58.080. Second, the state authorities provide guidelines for
master land use plans and develop criteria for use in evaluating
land use permits. Third, the local governments develop such master
programs to serve as standards against which all future shoreline
development proposals are to be judged, Wash. Rev. Code 90.-5.1OO
(2)(a)-(h):
The master programs shall include, when appropriate,
the following:
(a) An economic development element for the location
and design of industries, transportation facilities,
port facilities, tourist facilities, commerce and
other developments that are particularly dependent on
their location on or use of the shorelines of the
state;
(b) A public access element making provision for
public access to publicly owned areas;
(c) A recreational element for the preservation and
enlargement of recreational opportunities, including
but not limited to parks, tidelands, beaches, and
recreational areas;

284

Cd) A circulation element consisting of' th e general
location and extent of existing arnd proposed major
thoroughfares, transportation routes, terminals, and
other public utilities and facilities, all correlated
with the shoreline use element;
(e) A use element which considers the proposed general
distribution and general location and extent of the
use on shorelines and adjacent land areas for housing',
business, industry, transportation, agriculture., natural
resources, recreation, education, public buildings and
grounds, and other categories of public and private
uses of the land;
(f') A conservation element for the preservation of
natural resources, including but not limited to scenic
vistas, aesthetics, and vital estuarine areas for
fisheries and wildlife protection;
(g) An historic, cultural, scientific, and educational
element for the protection and restoration of buildings,
sites, and areas having historic, cultural, scientific,
or educational values; and
(h) Any other element deemed appropriate or necessary
to effectuate the policy of this chapter.

Fourth, local governments implement permit-granting systems for all
"substantial development," Wash. Rev.- Code 90.58 .14O(2). Appeals
from permit determinations may be taken to the local Superior
Court or to the Shoreline Hearing Board, a state administrative
body, Wash. Rev. Code 90.58.180.

Special protection is given to "shorelines of state-wide
significance," including most of the coastline,, lakes with surface
acreage of one thousand acres or imore., and associated wetlands,
and rivers downstream from a point where the mean annual flow is
one thousand cubic feet per second, and associated wetlands. The
local master programs must particularly protect and preserve these
areas', with "preferences to uses which favor public and long-
range goals." Washington Administrative Code 173-16-04.0. The state's
guidelines establish a priority system for evaluation of proposed
'uses for shorelines of state-wide significance, with particular
emphasis on conservation and recreational uses.

Rhode Island

Rhode Tsland has also enacted a comprehensive plan. The
Coastal Management Act created a coastal resources management
council as the principal mechanism for management of the state's
coastal resources., R.I. Gen. Laws 146-23-1. Composed of repre-
sentatives of the state legislature, members of the general
public, and state and local government officials., the council
is authorized to formulate policies and adopt regulations neces-
sary to implement its various management programs, Below the
mean high water mark, any person, firm or government agency pro-
posing any development or operation must demonstrate to the council

285

that its proposal would not (1) conflict with any management
program; (2) make any area unsuitable for uses to which it is
allocated by a resources management plan; or (3) significantly
damage the environment of the coastal region. The council
can approve, modify, set conditions for, or reject any such
proposal, R.I. Gen. Laws 946-23-6(B). Above the mean high
water mark, the authority of the council "shall be limited to
that necessary to carry out effective resources management
programst" R .I. Gen. Laws �46-23-6(B). The council's authority
is limited to specified activities or land uses when these
are related to a water area under the agency's jurisdiction,
regardless of their actual location. It is further limited
to situations in which there is a reasonable probability of
conflict with a plan or damage to the coastal environment.
These uses and activities are: (a) power generation and de-
salinaticn plants, (b) chemical or petroleum processing, trans-
fer, or storage, (c) mineral extraction, (d) shoreline protection
facilities and physiographical features, (e) intertidal salt
marshes, (f) sewage treatment and disposal and solid waste
disposal facilities, R.I. Gen. Laws �46-23-6(B) . This regula-
tion is accomplished through a permit-granting system administered
by the Coastal Management Council.

Delaware

Shert of rest rueturing state governnmnt to create a mechanism
for comprehensive planning, several overlapping approaches are
evidenced by current coastal and wetlands legislation. In its
Site Location Development law, Delaware prohibited all "heavy
industry uses of any kind not in operation on June 28, 1971...,"
within six miles of the coast, Del. Code tit. 7, 97003. All other
uses within the coastal zone are allowed by permit only. In
passing on permit requests, the State Planner and the State
Coastal Zone Industrial Control Board must consider these factors:
environmental impact, economic effect, aesthetic effect, number
and type of supporting facilities required and the effect of these
facilities, effect on neighboring land uses and current and muni-
cipal comprehensive plans for development and conservation,
Del. Code tit-.7, 7?004(b).

Maine

As one of several statutes affecting the coastal zone ini Maine,
the statewide site location law requires developers, including sub-
dividers of developments larger than twenty acreas, to notify the
Environmental Improvements Commission of the plans before start-
ing construction anywhere in the state of Maine. To secure approval,
the developer must demonstrate that it has the financial capacity
to meet state air and water pollution control standards, and has
made "adequate provision for fitting the development harmoniously
into the existing environment" such that the development 'Will not
adversely affect existing uses, scenic character, or natural re-
sources," Me. Rev. Stat. tit. 38, g481-4h8 .

286

Zoning has been employed in various types of state legis-
lation to protect coastal areas. Delaware's site location law
uses the zoning mechanism, as does Washington's Shoreline Manage-
merit Act. Maine enacted a mandatory zoning and subdivision act,
in which all shoreland areas within two hundred and fifty feet
of the normal high water mark of any pond, river or salt water
body are subject to zoning and subdivision controls, Me. Rev.
Stat. tit ].2, ~481l. Municipalities are authorized to "plan,
zone and control the subdivision of land," Me. Rev. Stat. tit. 12,
�4812. However, state guidelines are furnished by the Department
of Environmental Protection and the Maine Land Use Regulation
Commission, and municipal failure to abide by these guidelines
results in mandatory adoption and enforcement of ordinances for
the municipality, Me. Rev. Stat. tit. 12, 94813.

Florida

Florida has adopted a land use planning device which vests
primary responsibility in the state, rather than in the local
government. By designating "areas of critical environmental
concern," as provided for in the federal Coastal Zone Management
Act of 1972, 16 U.S.C. 1456(b)(3) (Supp.V, 1975), the state of
Florida recognizes areas with particular needs to be met with
state management policies and activities.

The Florida Environmental Land and Water Management Act of
1972 provides for the designation of areas of critical concern
for the purpose of controlling and coordinating development of
the areas through existing processes for guidance of growth.
The state planning agency may designate an area of critical con-
cern only for areas defined in the statute, Fla. Stat. 1380.05(2):
(a) An area containing, or having a significant
impact upon, environmental, historical, natural
or archeological resources of regional or state-
wide importance.
(b) An area significantly affected by, or having
a significant effect upon, an existing or proposed
major public facility or other area of major public
investment.
(c) A proposed area of major development potential,
which may include a proposed site of a new community,
designated in a state land development plan.

After an area is so designated, local governments and regional plan-
ning agencies submit existing or new land development regulations to
the state agency for approval. The approved regulations must be
adopted and enforced on the local level. If the local response is
inadequate, the state planning board may sue to enforce the regula-
tions, Fla. Stat. �380.05(9)

Another aspect of Florida's coastal regulation is represented
in the Beach and Shore Preservation Act, Fla. Stat. �161.011 et seq.

287

Structures such as dwellings, motels, apartment buildings, sea
walls, or other comparable structures are not allowed within
fifty feet of the line of mean high water at any riparian coastal
location, exclusive of bays, inlets, rivers...., Fla. Stat.
161.052. However, a waiver or variance of this setback require-
ment may be authorized by the department of natural resources.
Control of more general coastal development is achieved through
a permit-granting system:
If any person, firm, corporation, county, munici-
pality, township, special district, or any public
agency shall desire to make any coastal construc-
tion or reconstruction or physical activity under-
taken for shore protection purposes, or other
structures and physical activity including groins,
jetties, moles, breakwaters, sea walls, revetments
and artificial nourishment or other deposition or
removal of beach material or other structures if
of a solid or highly impermeable design, upon sove-
reignty lands of Florida, below the mean high water
line of any tidal water of the state, a permit must
be obtained from the department of natural resources
prior to the commencement of such work, Fla. Stat.
�161.041.

The Beach and Shore Preservation Act further provides that on the
local level, the board of county commissioners serve as the county
beach and shore preservation authority and as the governing body
of each beach and shore preservation district established thereby,
Fla. Stat. �161.36. It is the duty of the board to initiate
studies necessary to plan a logical and suitable program for com-
prehensive preservation and restoration of beach and shore areas,
with an emphasis on erosion control, Fla. Stat. 9 161.28. The
board is empowered to levy an ad valorem benefits tax or to issue
bonds to fund the preservation program, Fla. Stat. I 161 .37- .3b.

288

NOTE Gdftism of Coastal Planuing

Thoughtful commentators have voiced many concerns about the
statutory plans for coastal zone management. Several fundamental
disputes are involved when planning mechanisms are codified.
Critics ask who will make the decisions, who will benefit or suffer
from those decisions, and who will pay the bills.
A charge frequently hurled at planning proposals is that an
elitist group of planners is deciding the future for everyone, with
a resulting loss of personal freedom of choice.
Then the planning elite will be in a position to allocate
coastal resources in the "right" way; no more motels,
trailer parks, small beach cottages, apartments, condomi-
niums, or restaurants--those awful developments created
by the common man exercising his vulgar tastes in the un-
restricted marketplace. Instead, the "priceless" marshes,
bird refuges, fragile cliffs, and majestic views will be
preserved. The superior tastes of the planning elite will
have triumphed over the tastes of the common man. As (a)
Coastal Commissioner.. .said, "It's never a pleasant task
to save someone from themselves (sic) . (footnote omitted),
M.E .Johnson, Some Observations on the Economics of the
,California Coastal .plan, 49 S.CalJ5 .Rev.749,756 (1976)-

While planners seek innovative solutions to coastal area prob-
lems, economists seek to analyze the effects of proposed solutions
using current economic models. Land regulation raises financial,
political and sociological issues . The costs of implementation
of any coastal management plan will clearly range far beyond the
budgetary additions needed to administer a statutory scheme. When
development is controlled, land prices reflect use restrictions.
Coastal land on which heavy restrictions are placed may drop in value.
If new housing construction is curtailed, the costs of new and pre-
existing housing can be expected to rise. Who will benefit and who
will suffer in typical sale and lease arrangements in an area with
increasing demand for housing? See R .C. Ellickson, Ticket to Thermidor:
A Commentary on the Proposed California Coastal Plan, 49 S .Cal.L .Rev .715,
733-35 (1976) . Further, in an area in which an active construction
industry declines, resulting unemployment may depress the entire local
economny. How will property values shift upon implementation of a plan
'which would alter the location of industries, the size of ports, the
nature of the transportation system, the design of structures, and
the cost and desirability of energy?" D .J. Misczynski, The Awkward
Economics of Coastal Planning,, 49 S.Cal.L-Rev.737,739 (176),
A coastal plan which intrudes upon preexisting patterns of
development must meet the criticism of decreased efficiency. Consider
the concept of efficiency in these examples: an industry manufactures
its product most cheaply and rapidly when located near a port, but it
has an unacceptable impact on the coastal environment; housing develop-
ment construction methods deemed most efficient are banned; energy
sources that are presently most economical are projected to be most
detrimental to the environment.

289

The process of implementation of a coastal plan raises
dilemmas which must be solved even as the long-range effects of
a plan are debated. Once a statute is in force, it must be
interpreted and implemented. California's Coastal Act was the
result of a coastal plan written by a state commission. Several
issues are raised in one commentator's view of that process:
As the Plan is now written, generalized state and
regional plans must be interpreted and carried out
by cities and counties which lack the necessary
sense of scale which the state Coastal Commission
developed during its work on the Plan. By excluding
local government from this goal-identification
process, the Commission lost an opportunity to
generate policies which would be understood, if not
accepted, by local leaders, G Bowden, Hurdles in
the Path of Coastal Plan Implementation, 49 S .Cal .L.
Rev .759,768 (1976).
General language must be translated into specific activity. Who
is best suited to translate? What are possible conflicts between
state or regional representatives and local government officials?
Reread Section 30004 of the California Coastal Act, supra.
When authority is undisputed, consider the task of interpreting
statutory goals, such as those in Section 113A-102 of the North
Carolina Coastal Area Management Act, supra.

290

SECTION 3. IMPLEMENTATION OF COASTAL PLANNING
ECOLOGICAL DETERMINANTS OF COASTAL AREA MANAGEMENT
Principal Investigators David Brower, Dirk Frankenberg, and Francis Parker
Sea Grant Publication UNC-SG-76-05 (April 1976)
Appendix Two--Tools and Techniques for Coastal Area Management

I. LAND ACQUISITION
Land Acquisition
Land Banking
Advance Site Acquisition
Growth Management
Transferable Development Rights (TDR)
Acquisition of Less Than Fee Interests
Fee Simple Acquisition
Compensable Regulation
North Carolina Land Conservancy Corporation
Land and Water Conservation Fund
The Nature Conservancy

II. PUBLIC SPENDING
Capital Programing
Urban and Rural Service Areas
Acquisition
Utilities Extension
Development Timing
Access to Existing Facilities

III. TAXATION
Income Tax-Excess Profit Tax
Cost-Benefit Taxation (User Service Charges, Land Service Charges)
Special Assessments
Preferential Assessment of Property (Use-Value Assessment Taxation)
Land Gains Taxation

IV. DEVELOPMENT REGULATION
Challenges (Constitutional, based on Inadequate Authority,
Procedural Due Process)
Interim or Temporary Development Regulations
Zoning
Conventional Zoning
Exclusive Agricultural or Nonresidential Zones
Minimum Lot Size
Height Restrictions
Mandatory Low Income Housing Construction Ordinance
Conditional and Contractual Zoning
Special Exception
Variance
Minimum Floor Space Requirement
Regulation of Multi-Family Housing
Bonus and Incentive Zoning
Floating Zones
Performance Zoning and Performance Control for Sensitive Lands
Regulation of Development
Planned Unit Development (PUD) and Cluster or Average Density Zoning
Traditional Subdivision Regulation
Subdivision Controls Relating to Off-Site Facilities

291

Numerical Restraints or Quota Systems
Total Population or Quota Systems
Population and Employment Targets
Annual Permit Limits
Official Mapping
Regional Anti-Exclusion Techniques
Building Inspection
Regulation of Mobile Homes
Municipal Enforcement of Restrictive Covenants

V. ENVIRONfENTAL REGULATI(N
Locally Administered Regulation
Local Health Regulation
Sand Dune Protection Ordinance
Local Environmental Impact Ordinances
State Administered Regulations
Regulation of Public Drinking.Water Supplies
Mosquito Control
Prohibited Discharge to Water
Regulation of Solid Waste Disposal Sites
Prohibited Discharges (Ocean Disposal)
Regulation of Construction of Water Wells
Regulation of Septic Tanks
Obstruction of Navigable and Open Waters
Air Pollution Control Permits
Licensing and Regulation of Pesticide Application
Environmental Pesticide Control
Regulation of Oil Refineries
Control of Coast Wetlands Activities
Dredge and Fill Permits
Regulation of Water Capacity Use Areas
Dam Approval
Regulations Pursuant to Erosion and Sedimentation Control Plans
Oil Petroleum Control Program
Regulation of Mining Operations
Regulation of Oil and Gas Wells
North Carolina Environmental Policy Act of 1971
A-95 Review (process providing systematic opportunity for units
of government to review and comment on a variety of programs
and projects involving federal funding)
Environmental Regulation (Federal)
National Environmental Policy Act of 1969 (NEPA)
National Flood Insurance Program
National Pollution Discharge and Elimination System (NPDES)
Ocean Dumping Permit
Regulation of Bridges Over Navigable Waters
Permits for Dredge and Fill and for Structures Other Than Bridges
in or Over Navigable Waters

VI. REGULATION OF DEVELOPMNT IN AREAS OF ENVIRCNNENTAL COCORN

292

THE LEGAL IMPLEMENTATION OF COASTAL ZONE
MANAGEMENT: THE NORTH CAROLINA. MODEL

THOMAS J. SCHOENBAUM
RONALD H. ROSENBERG
1976 DUKE LAW JOURNAL 1 *

INTRODUCTION
Most of the coastal states of the nation are in the process of
creating coastal zone management programs in response to the: Coastal
Zone Managemepnt Act of 1972 (CZMA),1 which makes federal
funds available for the development and administration of sh' pro-
grams. The first stage of this effort, program development,requires
each state receiving federal funds to (1) identify the boundaries :f the
coastal zone planning area, (2) define the permissible land andiwater
uses that have a direct and significant impact on coastal wateg' (3)
designate environmentally critical areas, (4) enumerate the masts by
which proposed control over land and water uses will be exercisd, (5)
designate broad priority uses in particular areas, and (6) describe the
appropriate organizational structure to implement the program.= 2
The details of the management programs are left to the states, but
it is apparent that the CZMA essentially requires coastal land use
planning centered around a land classification system, and the designa-
tion and protection of critical environmental areas. The states that are
developing such systems, however, are beginning to realize that no
matter how carefully the planning process is carried out, the new.coastal
management laws will founder if the legal mechanisms for implementa-
tion are inadequate and are not made an integral part of the planning
process.
Yet developing an effective land use guidance system for coastal
areas is difficult. The federal guidelines under the CZMA give; the
states a choice of several possible methods: state standards for local
implementation subject to state review and approval, direct state regula-
tion and implementation, state administrative review of all land and
water use decisions, or a combination of these techniques.8 This is not
much help since total control by the state is seldom politically feasible,
and zoning, which is the only local mechanism specifically mentionaed in
the federal guidelines,4 is subject to well-known deficiencies.5 Munici-
pal growth control mechanisms, now a major topic of discussion, would
seem to have value in coastal zone management insofar as they present
methods for controlling the timing, sequence, and location of develop-
ment. Growth control, however, is not the only issue in coasti 'ones
management. Regional and national concerns must be addressqd;~,The
CZMA requires each state to list land and water uses that haVe fits
i)hich extend beyond the boundaries of particular municipalii ud-
ing "national interest" uses and facilities." ; The state progrfjiiust
provide "a method of assuring that local land and water use. rg:''i pns
do not unreasonably restrict or exclude" such uses.8 States -uri. re-
fore determine what constitutes an unreasonable exclusion of re'i!J. or
national uses. .

*footnotes omitted
293

The implementation of coastal zone management programs re-
quires the elaboration of a land use guidance system that is open to
organic growth and responsive to economic opportunity, but one' that
affords maximum protection to critical environmental areas and the
natural processes of the coastal area. The point of departure for such a
system should be the natural carrying capacity of the resources of' the
area as determined by objective study of its soils, water, air, and natural
systems, as well as its institutional resources.'
The concept of carrying capacity was first used as a resource
management tool in park and rangeland management' to determine the
threshold of use intensity beyond which the destruction of the support
systems of the area would occur. Its application to regional planning is,
however, quite new: the idea is to determine the possible uses of an area
of land by analyzing its natural characteristics. This implies that objec-
tive limits for the use of land exist, and that there are inherent limits
beyond which degradation and irreversible damage will result..: 'The
most sophisticated refinement of this technique has been suggtiby
Professor Howard T. Odum, who has developed an energy-baset Cm-
puter modeling technique with diagrammatic representation 'of;'all the
components of a given natural support system as its point of departure.
Hypothetical changes in the system can then be tested to deteine
their effect on the carrying capacity of the natural support yst2
Although valid as a threshold consideration, this version oif the
concept of carrying capacity is not a suitable regulatory technique::. It
ignores the reality that the carrying capacity of any given' 'area is
dynamic: the carrying capacity can almost always be changed; or ex-
panded by institutional investment and the importation of energy-iinuts
from the outside.'3' In addition, it is erroneous to assume that carrying
capacity is an objective guide to decision-making. Since its limits` can
be expanded by the importation of resources from other area''and
since environmental standards presume some allowable degra n,
carrying capacity must be regarded as a political decision resting' on
value judgments. The application of a land use guidance system based
on a dynamic concept of carrying capacity must thus await legislative
and administrative definition of the resource baselines, i.e. the minimum
standards for various resources.
In most coastal states, the baselines for certain resources have been
legislatively defined. Air and water quality standards are being defined
pursuant to federal legislation.l4 Dredge and fill and dune protection
laws are designed to protect the contours of coastal areas and particular
types of plant communities.l5 A baseline for water withdrawals and use
has often been established.' v
Still, baselines for particular resources are not enough;, carryng
capacity becomes a practical tool only after baselines for the futiioing
of natural systems have been legislatively and administrativelty, tier-
'mined.. This void can be filled by planning and by desiigating
critical'"_nvironmental areas, prerequisites to funding undeerthe
CZMA,'7 which becomes clear when one considers that the pr of
the designation of critical areas is not merely to protect a ge9i ic
unit but is primarily to preserve the ongoing natural systeni !� A
political decision has been made to protect natural systems fronegra-
dation whether resulting from their direct use or from activities outside
such areas which may have an indirect adverse impact on their fucion-
ing.

294

The thesis of this Article is that the dynamic concept of environ-
mental carrying capacity should be used, in addition to more traditional
planning tools, in the implementation of a state coastal zone manage-
ment program. This can be accomplished only through a coherent
system that both incorporates traditional regulatory techniques, such as
zoning and subdivision control, and creates supplementary legal tools
for better implementation of the carrying capacity concept. The system
must also provide for possible major revisions in the carrying capacity
baselines through the political process. In connection with such a
change-which would usually be a decision to allow greater degrada-
tion-it is important that legal mechanisms be provided to allow the
greatest possible public scrutiny and debate before a decision is reached.
In order to construct such a model, it is useful to focus on a
particular jurisdiction. The problems in North Carolina, which is more
advanced in the development of a coastal zone management program
than most states,'9 have been chosen as typical of those inhereit in the
implementation of such a program. North Carolina is one of tl' very
few states to undertake the coordinated development of land use plans
simultaneously by a great number of counties and municipais in a
large geographic area, an alternative to the geographical)l:imited
growth control models. North Carolina's coastal zone ment
program is also a prototype which seeks to employ a combinei of the
three methods specified in the CZMA for controlling landai4' water
uses: direct regulation by the state, local regulation in accordi with
state-established standards, and local regulation subject to sta.jeview.

I. THE STATUTORY FRAMEWORK': . : -.
THE NORTH CAROLINA COASTAL AREA MANAGEMENT"Ai;
After almost a decade of preparation, North Carolina acqui'd the
legislative authority to develop a coastal zone management program
in 1974."2 The North Carolina Coastal Area Managemi Act
(CAMA)21 embodies many of the features of the Model Land .Develop-
ment Code of the American Law Institute.22 A new state agey, the
Coastal Resources Commission, was created and given the 'princi-
pal responsibility for the development of the coastal zone .manage-
ment program.?3 Local governments are also given important fctions
under the CAMA; unlike some state land use laws,24 the CAM+ gives
regional organizations only a very minor role. : i :';

A. Planning
The process of formulating a land use plan for the twenty-�ounty
coastal area covered by the CAMA is a collaborative effort of- t state
and the local governments involved. The state, through the, C.astal
Resources Commission, has the authority to designate specific "areas of
environmental concern";2' in addition, the Commission formulates
guidelines for the coastal planning required of local governments, whose
pigns'must be reviewed and approved by the Commission.2%,'i At; this
writing the planning guidelines have been' promulgated andckSlans
are being formulated, but action has been deferred on the finai4desiigna-
tion of areas of environmental concern pending receipt of theirecom-
mendations by the local governments.27 ': "

295

Despite the incompleteness of the'planning process, Bi!ver, a
fairly precise idea of the content ..of the local land use paIs can be
gleaned from the planning guidelines. Each land use plan is' consist
of five elements: (1) a statement of local land use objectives,`policies,
and standards, (2) a summary of data collection and analysis (3) a
map of existing land use, (4) a land classification map, and (5) a
written text describing appropriate development for proposed areas of
environmental concern.28 ,'
The policy element of the plan must take into account population
projections, economic trends, the provision of housing and services, and
the protection of natural environments to arrive at a general statement of
what type of community is desired for the future. This is to be used to
guide future development, to set priorities for action, and to give'neces-
sary background information for land classification.29
Data collection and analysis are necessary for the formulation of
policies. This begins with a review and mapping of existing !and use
patterns. Then an analysis of carrying capacity is required, wi, must
take into consideration not only natural constraints on deveitment,
such as physical limitations (hazard areas, soil limitations, and water
supply), fragile areas (wetlands, wildlife habitat, beaches, anid scenic
areas), and resource potential (productive woodlands and agicultural
areas), but also institutional restraints, such as design capacitof 'exist-
ing water and sewage facilities and roads. Anticipated demand;for land
is then calculated on the basis of population and economic trends'. Some
prediction then can be made of future land" needs in pami'uI use
categories as well as of future demand for community faciitiesi.40
Using this analysis as background, the planning guid!i also
require the classification and mapping of all lands within thej?' ction
into five broad categories: developed (lands of moderate tJigopu-
lation density), transition (lands where population densi�ty ;ll ie ac-
commodated through the provision of the necessary publicd.'ces),
community (lands with present or predicted low density d:!'lment
which will not require extensive public services),-rural d'hose
highest use is for forestry, agriculture, or other resource use; as :eall
lands for future needs currently recognized), and conservationi ,_tgile,
hazard, and other lands necessary for a healthy environment),;)"2tocal
jurisdictions may also formulate detailed land use maps toget! with
the land classification map, but this is not required.82 Despiteti e fact
that separate land use plans will be prepared by each local jurisdition, a
single comprehensive plan will emerge since the Coastal eseurces
Commission has the responsibility of coordinating the idividual
plans3. 83 ' .::g
The local governments may also delineate the specially pA cted
"areas of environmental concern,"'4 but this does not serve as' !a'signa-
tion for purposes of granting permits. Areas of environmental iiicern
will be designated by the Commission through the adoption o: ritten
descriptions of such areas;"5 the Commission is also studying thepossi-
bility of mapping such areas.3 , "

B. Implementation: The Legal Effect of Planning .
Unlike the management programs in effect in Oregon and Florida
(which have stringent consistency provisions requiring zoning, _4bdivi-
sion decisions, and all state and local government regulatory atins to
296

be in accord with the required comprehensive land use plans)," the
North Carolina CAMA provides for only partial legal effectiveness of
the plan."" Lands and waters which are determined to be'gareas of
environmental concern are subject to direct control by the;state: devel-
opment cannot take place within such areas without a per ; Local
governments may assume responsibilityfor granting permits;i'"minor
developments"'40 within those areas, but their implementatio;i.and en-
forcement programs are subject to state-level.review.4? N9l~irmit for
development within an area of environmental concern mayie issued
unless it is consistent with the approved land use plan, and existing local
ordinances and regulations affecting an area of environmental concern
must be modified to be consistent with the plan.42
On the other hand, the coastal management plan has no legal effect
insofar as lands and waters outside these designated areas are concerned.
The implementation of the plan is up to the local governments; the state
has the power only to review local ordinances and regulations for
consistency and to transmit nonbinding recommendations.4 :In addi-
tion, state-level regulation and decisions under legislative authority apart
from the CAMA are not required to be consistent with the: plan, even
within the areas of environmental concern. The only requirement is
that existing state regulatory programs be administered "in i0ordination
and consultation with . . the [Coastal Resources] Commission."44
It is obvious that this lack of enforceability is the Adhii heel of
North Carolina's emerging coastal zone management progr'a:e Unless
corrected, this weaknes 'will not only allow4the carefl il;:'rloped
plans to go for naught; uncontrolled development in other' of the
planning area will also create irresistible pressures on 'he;'Aeas of
environmental concern, thus undermining the effectiveness i at por-
tion of the management program as well. Analogous pro ist in
the coastal zone management programs of other states.t ijcome
this fatal weakness, it is imperative that action be taken' l .elop a
land use guidance system to implement coastal planning. i: . '

II. A MANAGEMENT SYSTEM TO IMPLEMENT L U
Restrictions on development in environmentally criticil as di-
rectly enforced by the state, are characteristic of many state iams,48
but they are inadequate for implementation of a coastal ;lifgement
plan. Those restrictions must be supplemented on the localei',ate, and
federal levels by a coordinated land use guidance system ha espects
the integrity of the plan. Such a guidance system can include ili:tional
as well as newer forms of land use regulation. It should:be'recog-
nized that each regulatory tool, considered individually, will h signif-
icant weaknesses that may have to be compensated for .by other
mechanisms. : :

A. The Function of Traditional Forms of Land Use Controls"Z'oning,
Subdivision Regulation, and Capital Improvement Budg
The traditional approach to land use planning in the U d States
consists of projecting economic and population growth, formulating a
capital improvement plan for the construction necessary to 'ccommo-
date the expected growth, and relying on zoning and subdivision regula-
tion to design the resulting pattern of' land use. Zoning, which long
097

ago was upheld against constitutional challenge by the United States
Supreme Court," is traditionally used to divide a jurisdiction into
districts and to prescribe regulations controlling the height and bulk of
structures, lot coverage and open space, density of population, and the
land uses permitted within each district."' Conventional subdivision
requirements operate only at the moment when raw land is converted to
building sites. They supplement zoning by requiring the dedication and
proper specifications of streets, minimum lot sizes, and provision for
water, sewer, and other public utilities."'
Most of the cities and counties within the coastal area. of North
Carolina have enacted zoning and subdivision controls."" All either
have employed full-time planning staffs or rely on outside consultants or
the state Department of Natural and Economic Resources for technical
planning assistance. Existing zoning ordinances are very much alike.
The boundaries of about ten different "use districts" are, drawn on an
official zoning map." Within each district certain named uses are
permitted by right; other named uses are permitted if the Board of
Adjustment finds that particular prescribed conditions will be mnet.52 In
addition, dimensional requirements are prescribed for developments in
each category of uses. These are usually minimum lot sizes, minimum
required lot area and setback for improvements, building heights, and
off-street parking requirements."3 Extractive uses such as quarrying and
the removal of sand and gravel are typically allowed by right in indus-
trial districts and as a special use in other districts."4 Licenses may be
required for m~obile homes which, in addition, are required to meet
specified conditions."" Beach access is provided in some ordinances
through requirements that any road designed at angles other than
parallel to a public recreation-resource must be mapped to the boundary
of the resource and that large developments involving more than 600
feet of recreation-resource frontage must provide public pedestrian ac-
cess from the roadway to the recreation area.150
Existing subdivision ordinances in coastal jurisdictions in North
Carolina are intended to regulate the internal development of particular
building sites and to supplement the area's capital improvements budget
by ensuring that minimum design standards for streets, utilities, and
other com-munity services are met. Although North Carolina enabling
legislation authorizes counties and cities to require that the subdivider
dedicate streets, utility rights of way, and recreational areas for residents
of the immediate neighborhood,"7 the typical local ordinance provides
only for the first two types of dedication while merely recommending the
dedication of recreational areas."8 Many jurisdictions have enacted
planned. unit development"9 ordinances which give 'the planning com-
mislion the- discretion to vary subdivision regulations in the case of a
complete group development which provides "adequate" public spaces
and improvements and which also provides binding assurance of the
achievement of the plan.60

29 8

It is clear.that reliance .solelyo iforegoing Ieg to
implement the new type of planning, required under the a old
be disastrous. Conventional zoning and subdivision reg. i.e
that an essentially unlimited supply of land suitable for ation
exists.6' The system divides and regulates the use of land in a'i'ort to
provide the most desirable living and working conditions for tdivid-
ual; the land resource itself is not the focus of attention. The,;jpacity
of the land to support development is considered less important'{tli!n the
compatibility of land uses with one another. Since the passa f the
first zoning ordinances, local governments have altered the basi ;oning
framework somewhat by increasing the complexity of the ions
within a larger variety of land use classification;62 howeveri ,i, ~focus
has remained on existing use patterns and projected demandd~ixtions
rather than on environmental carrying capacity. An additional blem
with zoning as the basic land use tool is its assumption that',i d use
categories can be maintained for an indefinite time. It has beetndemon-
- strated that this assumption is erroneous.63 Even the best zoninf lan is
typically overtaken by events. Unexpected development pressureicause
ever-increasing use of the variance, the zoning amendmenti: id the
special use procedures, to the point where there is little relatioWiitween
the zoning plan and the actual physical maie-up of the co ity.6
' This does not mean, however, that zoning should be dlsiscrd as a
tool in coastal zone management. 'Rather, its limitations AQiiWd be
recognized and supplementary management techniques devise';' meet
implementation problems that traditional zoning was never Bitjtd to
fulfill. Zoning should also be adapted to the new kind odi;gional
environmental planning required under the CAMA. ' t :
Several changes in the zoning process are necessary to i t an
instrument to implement planning."6 First, each local go;ment
should, simultaneously with the adoption of the coastal management
plan, pass a zoning plan that is consistent with the land classiffation
system required under the coastal management plan. This zojIng plan
would provide a detailed land use map that would be more speifj.than
the coastal management plan map, and would guide the implementation
of the general classification categories. :;
Second, since the land classification system set forth in tl astal
area management guidelines calls for conservation and reso ser-
vation areas,"" while the typical zoning ordinance contains oniillop-
mental classifications,"' new zoning districts must be created .rr
spond with the conservation classifications. Zoning ordinaig ould
thus include flood plain, shoreland, wetland, historical forest, witeJhed,
and wildlife habitat districts."s The purpose for these new distiictneed
not necessarily be to prohibit all development or to maintain the as in
a totally natural condition."" The intent would be to rest>^l and
condition uses in order to protect the resource 'i, lved .' W.a,
no use should be permitted as of right in such ditricts. ': of
uses would be restricted, and all uses would be .. onhus
s,.bject to case-by-case review. Specific use, cnditionsihe
:fvironmental carrying capacity of each, type of district b.ed
,"id included -in the ordinance. In addition, all-'uses in i cts
4i!ould be subjected to;a pre-development environmental ip
'sis0� and the Board of Adjustment should, have the poweri ose
additional conditions in connection with the granting of a permit'

299

There is precedent for such an approach. For example, the zoning
ordinance of Currituck County, North Carolina, contains a "flood
plain" district designation,T2 in which no uses are permitted as of right.
The basic aim of the district is to maintain the barrier dunes and
shoreland vegetation free of all encroachment 500 feet shoreward of the
mean high water mark.73 This basic approach should be expanded to
include additional categories of districts. Authority for the creation of
such new districts can be derived from the general grant of power in
state enabling legislation to promote "health, safety, morals, or the gen-
eral welfare of the community,"74 but to remove all doubt, it would be
desirable that the state enabling act be amended to recognize the preser-
vation of environmental values as a valid zoning purpose.
Third, authority for a cluster zone or planned unit development
(PUD) should be provided in local government zoning ordinances and
subdivision regulations. The PUD has been defined as
an area of land, controlled by a landowner, to be developed as a single
entity for a number of dwelling units, and commercial and industrial
uses, if any, the plan for which does not correspond in lot size, bulk
or type of dwelling or commercial or industrial use, density, lot cover-
age and required open space to the regulations established in any one
or more districts created . . . under the provisions of a municipal
zoning ordinance enacted pursuant to the conventional zoning enabling
act of the state .7
The PUD technique generally allows such developments to have
clusters of increased density combined with provisions for open space; it
provides flexibility since the actual design is a matter of negotiation
between the developer and planning authorities. Four varieties of
planned unit development have been identified: (1) the density trans-
fer, (2) the mixed residential development without density increases,
(3) the mixed residential development with density increases, and (4)
mixed uses. Although the PUD is theoretically applicable to projects of
any size and to low-income as well as luxury housing, it is most
attractive to developers of large tracts. Generally speaking, the PUD
process has been undertaken in jurisdictions having long experience
with planning and zoning techniques, large and competent planning
staffs, and specific enabling authority. The PUD system should not be
considered a primary land use tool for a coastal county with little
experience in the field of developmental control. This mechanism may,
however, have greater value for the government capable of utilizing it.
Planned unit development offers the advantage of clustering growth in
areas capable of supporting population and structures. And, by in-
creasing density in some locations, the technique can provide more open
space. Clustering also permits more efficent provision of urban services
to an area of limited size. Energy use is also curtailed.76
Although several coastal jurisdictions in North Carolina have PUD
ordinances, their validity has never been tested in the North Carolina
courts, and, they are not specifically authorized in the zoning enabling
act. One commentator, after reviewing the case law, has concluded
that, although PUD ordinances may be upheld even in the absence of a
zoning enabling provision, appropriate enabling legislation is needed on
the state level to remove all doubt as to the validity of this device.77
Fourth, the coastal management plan, when adopted by local
governments, should be considered, in effect, a constitution to which
future zoning decisions must conform. In this way, zoning would
assume a proper relationship to planning: the plan would provide policy
determination and guiding principles, while the zoning ordinance would
300

provide detailed means for its implementation. The plan would have
immediate effect in the community, changing land market valugs. Ap-
plications for zoning changes and variances should be judged by deci-
sion-making bodies on the basis of their fidelity to the specific riteria of
the plan. Zoning decisions should be reviewed by the courts for their
reasonableness in relation to the plan as well as for their conformity to
due process standards.78 . :
Each local jurisdiction should thus amend its zoning ordinance to
require that decisions be consistent with the plan adopted under the
CAMA. Even in the absence of such action, however, the courts may
require that zoning conform to coastal land use planning. Although in
North Carolina zoning has been held' to be a self-contained activity,
requiring no conformity to an extrinsic master plan,"9 this view may
change with the passage of the CAMA since local governments in
coastal areas must now adopt an extrinsic master plan separate from the
zoning process. The North Carolina courts may follow the trend in a
growing minority of jurisdictions toward granting legal status or even
controlling weight to the planning document and requiring zoning
decisions to conform, or at least be reasonably related, to the master
plan.80
Similarly, local capital investment policies and subdivision ordi-
nances should be required to conform to the adopted coastal land use
plan. Standards for land subdivision should ensure that growth does
not outstrip community infrastructure planning. Dedication of land for
recreation should be required, as permitted by the North "Crolina
enabling statute.8" Particular attention should be given to adequate,
bonded82 water supply and sewage disposal facilities, storm Water drain-
age, and the mitigation of damage to topographical and natural features.
Where feasible, the developer should be required to leave a-inimum
percentage of the natural vegetative cover undisturbed88 : :'
Some local jurisdictions may want to go beyond this an :4ulate
not only the location but also the timing and sequence of deveoment,
through the zoning, subdivision, and capital budgeting mecha is-. For
example, the village of Ramapo, New York, a suburb of NewY 0i City,
has placed all residential development under special permit requirments
framed in terms of the availability of five categories of pblic sevices,
and the San Francisco suburb of Petaluma has limited the nimber of
new residential units to 500 per year for a five year period." It must be
recognized, however, that such techniques may not be suitably for the
coastal zones of other states where socio-economic and enviroimental
conditions are markedly different from those in the suburban areas of
New York and San Francisco. Most coastal areas of North Carolina,
for example, have a relatively stable population,85 high unemployment
with an attendant need for economic growth,86 and a development
process that, except in a few areas, is largely characteristic of 'a low-
demand area.87 � ,

B. Environmental ImpactAnalysis as aSupplement - :
to the Zoning Process
XIthough the foregoing proposed reforms of the zoningpubdivi-
sion, and capital budgeting mechanisms would aid the implementation
of the coastal zone management program, additional problems; remain.
First, the zomng process is not designed to gather information about the
impact of development on environmental carrying capacity.' Second,
zoning is essentially pre-regulation; the most carefully prepared zoning
map may be overwhelmed by variances, zoning amendments, and spe-
cial exceptions that are granted on a case-by-case basis. These deficien-
cies can be corrected by requiring that significant land use decisions
involve a review of the environmental consequences of the 'proposed
action.s A land use decision should be considered significant if. it
involves a variance, zoning amendment, conditional use permit; special
exception, subdivision approval, or any "major development project."89
Environmental impact review can thus supplement the zoning and sub-
division reforms suggested above.90
Environmental impact analysis would have two basic purposes:
(1) full disclosure of the impact of the development on the carrying
capacity of the land and on the objectives and principles 'of coastal
planning, and (2) the guidance of substantive decision-making and the
development of conditions and restrictions to preserve aoceptibik levels
of environmental and institutional carrying capacity, as well as to protect
the integrity of the plan. It would also provide a basis fb .Judicial
review of local land use decision-making. The use of this process pre-
supposes, of course, that the local community, operating un-der the
planning guidelines promulgated by the Coastal Resources Commission,
has made a political value judgment regarding the protection of mini-
mum levels of carrying capacity for environmental systermn and has
implemented these values through the processes described above;namc-
ly, the coordination of zoning with the coastal land use plan iand the
creation of new zoning districts with specific carrying capac?[r uide-
lines for floodways wetlands, historic areas, forests, and cop natu-
ral areas.91 It also depends on the exercise of some degree ofdiscretion
by the relevant decision-making authority.92 - ` ,
The environmental review process should be construcit Ythat it
does not unduly burden landowners and developers. A clief form,
no longer than two sides of one sheet of paper, should be deveed to
be completed and submitted along with the zoning permit appCation.
The developer would be required merely to state impact factors h as
water use, water discharge, number of units, present vegetatiype-:over,
land clearing required, wetland filling or dredging, dune dist::ance,
soil characteristics, and energy use requirements. The planhigiboard
or board of adjustment should be empowered to require mort informa-
tion where necessary. ,
The implementation of a local government environment i impact
assessment process would, of course, have to be authorized under state
law. The North Carolina Environmental Policy Act, for' instance,
authorizes the governing bodies of all cities, towns, and counties to
require detailed environmental impact statements of any special purpose

302

unit of government as well as any private developer for "major develop-
ments," which are defined as including virtually all projects at least two
acres in extent.93 This authority has been utilized by only two local
governments in the state.94 The Environmental Policy Acts o at least
four other states require environmental impact statements of.local gov-
ernments.95 The law of one of these states, California, has been inter-
preted by the state's highest court to require the impact statement
process in connection with a local government's grant of conditional use
and building permits when the project would have a significant effect on
the environment.96- . ;:.
It would appear, however, that the full environmental :impact
statement process that is designed for evaluation of govern nntal ac-
tions would not be appropriate for private developers. It is too burden-
some and expensive to be a practical tool. But the advantages of the
assessment technique should not be overlooked.97

C. State and Federal Regulatory and Program Activities:
Permit Coordination and Plan Revision
Many state and federal regulatory programs established to exercise
control over coastal resources will continue to operate after a' coastal
area management program has been established. These incluhe state-
federal regulation of water and Sir quality,98 wetland protectio&nlegisla-
tion,99 sand dune preservation,�10 flood plain regulation,l�l andi'ontrols
on excavating or filling within navigable waters.102 I. ;'O:' ;*I'! ,i
State and federal governments may also conduct or sup devel-
opment within or activities affecting the coastal zone. WATfi~is best
typified by the current controversy over strategies for achbi `i"ational
energy goals through outer continental shelf oil and gas prodction,
offshore nuclear development, and deepwater super-tanker podrts, these
measures necessitate the siting of accompanying onshore failities.108
More traditional state-federal development decisions include water sup-
ply systems,104 sewer facilities,"0' and highways.0 In 'additi6n, the
federal government is responsible for major conservation progais with-
in the coastal zone such as national seashores107 and wildlife reges.108
In order to explore the complex issue of intergovernmental and
interagency cooperation, it is useful to distinguish two broad citegories
of relationships between these regulatory-developmental progr::s and
coastal zone management: those programs which must' l' sistent
with the coastal management plan and -those which need not be., The
first category reflects the fact that many state and fedeitory
programs and even developmental decisions are required to ?i11onsist-
ent with or to supplement a state's management program. Fb '_.ample,
the CZMA requires that, after approval of a state's managei plan,
(1) applicants for a federal license or permit obtain certifiati t the
propbsed action is consistent with he. state's program,109a'?'t, . () state
and local government applicants for federal grants show th o sed
projects are consistent with the management program.: dition,
water and air quality norms established by federal, state, or lol l gov-
ernments are specifically incorporated and required to be adhered to in
the administration of a state's management program.l

303

In this first category, then, the major problem is administrative
coordination of the multiple permit requirements of various-agencies
and levels of government. Considerations of basic fairness,'i4siell as
due process, dictate reform of the regulatory process to allowederly
consideration of applications for permits and the elimination of needless
duplication. A master permit application form should be de vied for
coastal development projects subject to multiple agency and governmen-
tal regulation. The content of the form could be worked out between
local governments, the Coastal Resources Commission, and other state
and federal agencies.l12 Uniform agency procedures, joint:'imstiga-
tion, and public hearings should, be provided. A design forthe se-
quence of approval of permit applications should be prepared to allow
orderly consideration by each relevant agency and level of government.
Points of possible policy conflict and overlapping governmental respon-
sibilities should be identified and resolved through interaigenii and
intergovernmental agreements. Minor projects should be giveniepedit-
ed consideration.
The second category of relationships reflects the fact'i. :some
state or federal regulatory-developmental programs may involve d.evia-
tion from the carrying capacity norms of a state's management Gram.
The CZMA requires federal agencies conducting -or supportingractivi-
ties or undertaking development projects to be consistent wit~liittate's
management program only "to the maximum extent prac1tiCe."1
Furthermore, the Act requires state management programs ",O :ovide
adequate consideration for "national interest" facilities as wie':-ssur-
ance that land and water uses of regional benefit are not u'`'ably
restricted."' The North Carolina CAMA does not require;iedi'"state
regulatory and development programs affecting the coastal -o1'&to be
consistent with the management program,1l5 though it giv!s;' state
authority over the siting of "key facilities," i.e. those having'._i: than
local impact, such as energy facilities."1"
This aspect assures that coastal zone management will b' ham-
ic process which is open to change and growth. Both coastianing
and the underlying carrying capacity norms will be subject to6i'eiWn as
circumstances change. Such revision may involve either furtitjftrotec-
tion of resources, as in a decision to establish a national seiSre, or
more intensive use of resources, as in a decision to permit t iig of
major energy facilities.
It is important, however, to provide an appropriate prod�e r the
consideration and evaluation of such decisions. The best iml'gnism
for this task is the environmental impact statement reviewrocess
required by the National Environmental Policy Act"'7 (NE[LPi and
state environmental policy acts.T"' The impact statementwich is
required under NEPA in the case of any major federal action Liaving
significant impact on the environment, must fully assess probabWleenvi-
ronmental consequences of alternative courses of action.li':..;: nder
applicable principles of law, the impact statement would fulldislose
not only the direct impact on the environment, but also secondary and
cumulative impacts on growth or population patterns and the effects on

30'4

land use, water, and public services.'20 The impact statement is re-
quired to be prepared before final agency action is taken, and, is re-
viewed by federal agencies concerned with resource managemnt,12T
such as the Council on Environmental Quality and the Envito-fental
Protection Agency, as well as by state and local agencies and thepublic.
This process provides a basis for informed political decision on proposed
adjustments'in the established carrying capacity norms and the ncomi-
tant revisions in the coastal management plan.. � ' -.;i.
A related problem is the possibility of conflict between federal and
state governments over particular resource use and facility siting ques-
tions. This has already occurred with regard to energy-related develop-
mental measures.l22 It appears that no coastal state has created a
mechanism for dealing with potential federal-state conflicts,123 yet these
may be too important to be resolved on a case-by-case basis. This
defect should be corrected through the establishment of an ongoing
coordination process on the state and federal levels.'24

m. TAXATION POLICY AND COASTAL ZONE MANAGEMENT
t . .
In North Carolina, as in most states, the taxation of real and
personal property is the dominant source of local government tax reve-
nues.?21 Local governments exercise this power under a specific delega-
tion of power by the statel26 and subject to constitutional limitations.'27
Two major questions arise as a result of the land use restrictions that are
characteristic of a coastal area management program. First, what will
be the impact of these restrictions on the tax liability of property owners
within the coastal area? Will property continue to be assessed; in the
traditional way? If not, what will be the impact on local government?
Second, should the property tax mechanism be artificially manipulated
to achieve the goals of coastal zone management; for example,ishould
certain lands be preferentially assessed to provide a disincentive for
development?
t.rL .' ,',
A. Impact on Landowners . :. . �
The answer to the first question requires an analysis of the admin-
istration of real property appraisal. Under present procedures in North
Carolina, for instance, all real property in each local jurisdiction is
appraised at least once every eight years.'"" In addition, property must
be reappraised in other years if there has been a value change of more
than $100 by reason of external factors other than general economic
conditions."9 A schedule of values and standards is prepared by the
county tax supervisor subject to the approval of the county commission-
ers.130 A uniform standard of appraisal must be used, however, requir-
ing real property to be valued at its "true value."'31 In determining
"true value," the appraisers must take into consideration factors such as
location advantages and disadvantages, soil quality, adaptability for
various uses, and zoning.'32 The legal standards for appraisals in North
Carolina therefore mandate a determination of the fair market value
which takes into account legal restrictions imposed by the police'power.
An appraisal of property at its highest market value regardless of use
restrictions, which is the standard in some states,'8' would be. impro-
per34 in the context of coastal management planning.

305

' It would thus appear that the designation of areas of enr ental
concern, and the zoning changes that would be required to i ent
coastal zone management in North Carolina, will cause mi nges
in, the appraised value:of the property within the jurisdictions sinethese
police power restrictions would be considered in the apprais: pr.cess.
Lands subject to the greatest police power restrictions would go oWn in
appraised value, while lands receiving developmental classifiations
would go up.'"" The resultant pattern of taxation appear equitable
and should be implemented along with the- coastal area management
program. The taxes foregone on the restricted land would be effectively
transferred to lands of increased, or at least undiminished, value in the
rest of the community."" It has also been argued that proper zoning
and consideration of land use restrictions in property assessment .maxim-
izes the tax base of the community because the failure to zone tmeans
that the increased value of the unrestricted property would be offset by
reductions in the values of all the properties which bear the external
costs produced by permitted uses.7"'
Under existing North Carolina law, either the state or owners of
restricted coastal land should be able to compel local governments to
accept the appraisal readjustments. The state, through the Piroperty
Tax Commission of the Department of Revenue, exercises general and
specific supervision over the valuation and taxation of property.188
Individual property owners can appeal either the general county 'valua-
tion standards or specific appraisal decisions to the Commission,l"M as
well as to the courts.'40

B. Preferential Property Tax Assessment
Acting on the presumption that the valuation of real property at its
highest rather than its present use encourages the urbanizing conversion
of rural land, at least twenty-eight states have enacted preferential
assessment statutes for farmland.l'4 The preferential assess&einiiea is
based on several premises. First, it was' intended to provide taiXrelief
for farmers whose lands had appreciated in value due to devbioental
pressures, thus seeking to maintain the agricultural use' of tive
land and to insulate farmers' from the financial impact of escalating tax
bills.'42 Second, aside from its justification as a direct farm Subsidy,
preferential tax policy was suggested as a means of preserving a'dwin-
dling supply of prime arable land. Since flat farmland could be easily
converted into mass housing developments, it was feared that agricultur-
al productivity near large markets would be destroyed without some
.:preventive measure."48'. Third, in the early 1960s, conservationists con-
sidered the preferential tax assessment programs an important technique
for the provision of open space; similar justifications were presentod for
preferential tax plans directed towards the protection of forest"a''open
space lands.'44 Finally, most if not all state preferential assent
programs have required that lost or uncollected taxes be '-tured
upon the sale or change of use of protected lands. In some' innces
additional penalties are also incurred. The tax recapture and the penal-
ties are intended as inducements to maintain current land use patterns
and as deterrents against speculation and rapid development.a:" '"

306

Not surprisingly, preferential taxation policy has received substan-
tial criticism and has stirred considerable debate. Several arguments are
raised against it. First, the technique has been described as a tax
windfall for large corporate agricultural enterprises and speculators.
Since the preferential assessment is uniformly applicable to all landown-
ers using their property for agricultural purposes, the large agri-business
firm gains along with the economically hard-pressed small farmer."4
In addition, the program applies on a statewide basis so that land well
beyond the pressures of urban development receives the same preferen-
tial treatment as does realty directly bordering urban areas. Early analy-
sis of California's Williamson Act14T found that most preferentially
assessed land was "below average value nonprime agricultural land
located some distance from incorporated areas."148 Consequently, by
its bver-inclusiveness the Act protected property in only slight danger of
immediate conversion to nonfarm use.
Second, the method has been criticized for failing to discourage
"premature and unnecessary conversion of agricultural land to non-
agricultural use."'49 Research studies have borne this out. In Mont-
gomery County, Maryland, preferential assessment has been found (1)
to prolong the pre-development or speculative period when the land is
not agriculturally productive and (2) to cause a slight delay in conver-
sion of no more than one to one and a half years.'50 Therefore, the
effect of preferential assessment on regional development appears to be
minor.
Third, preferential assessment also causes a reduction in the tax
base of the taxing jurisdiction and hence reduces local government
revenues in these areas. This phenomenon results in a severe fiscal
impact on tax districts which are far removed from developmental
pressures, and in fact transfers the tax burden to the nonpreferred land
uses in those places.l61 The United States Department of Agriculture
has estimated that the revenue loss necessitated by lowered property
assessments in Montgomery County, Maryland, could have sui"oted a
vigorous public land acquisition program.'52 According to t dy,
one percent of the preferentially assessed agricultural land ting
to more than 1500 acres-could have been purchased in fee dis ~:hthe
revenues lost during each of the years the program was in eff pf the
figures are accurate, a direct public effort to acquire ownershipen
land would have been considerably more effective in slowin 1op
ment and preserving open space. Moreover, the predicted tive
impact of the tax rollback or recapture provisions may in fact bi sory
inthe case of the land speculator. Since property taxes are dible
expenses used to offset ordinary income, and in some cases a in.
.heir postponement and imposition at tlietirof tilandk be
beneficial to the seller in terms of federal income tax.1ls f
-; This combinat6in of criticisms presents a sol idea
that preferential assessment by itself can accomplish its ss-

307

IV. GOVERNMENTAL ACQUISITION AND OWNERSHIP P SOL ES? .
AND COASTAL ZONE MANAGEMENT

A. Coordinated Use of the Acquisition and Ownership Powerd
I to Implement Coastal Zone Management
Public acquisition and ownership of land is certainly}' ihe;most
direct method for controlling its use. Yet the use of this goveental
power is not emphasized under federal and state coastal zone :manage-
ment laws.-- Under the federal CZMA, the only mention of acquisition
as an implementation tool is the authorization of federal grants of up to
fifty percent of the costs of acquisition, development, and operation by a
coastal state of estuarine sanctuaries created for the purpose of studying
the natural and human processes occurring within estuarine areas."55
The North Carolina CAMA deals with acquisition as a policy tool only
by providing for the use of the condemnation power to acquire a fee or
lesser interest in order to protect an area of environmental concern
where it has been judicially determined that a regulatory order affecting
the area constitutes a "taking."15
Other statutory provisions and legal doctrines, however, provide a
broader basis for using the acquisition and ownership power as a;'oastal
management implementation device. In North Carolina, loca govern-
ments may acquire land by purichase, gift, or otherwise, not'6ily for
parks and recreational purposes,5"7 but also for conservatiori :itistoric
purposes or to preserve an area of great natural scenic beau , *',In the
latter case cities and counties are expressly authorized tonl e or
accept less than fee interests in real property;115 this makes 6i? ble a
program for acquisition of development rights and of scenic ai[d)onser-
vation easements through which the fee interest remains rivate
hands....
Under existing law the state has analogous atihority."
ment of Natural and Economic Resources has broad powes . quire
lands for state forests and parks,"'' and the Wildlife Resourcsmis-
sion may purchase or accept property to establish wildlife rf and
management areas.162 In addition, a public body, the North airolina
Land Conservancy Corporation, has been created to acquire aid; pre-
serve areas in their natural state.'l3 This entity is authorized to acquire
fee simple or less than fee simple interests in land'" and' could thus
institute a state conservation easement or development rights'program.
Similar structures are available in several other coastal states.'65'.:
A common law concept of state ownership, the public(tf'ist, doc-
trine,166 is also important in coastal areas. In North Cagohta, the
public trust doctrine would appear to affirm state title to all tidelands
below mean high tide67? except where private claimants can sh : with
respect to specific parcels, a "connected chain of title from the,-sVereign
to (them) for the identical lands claimed by (them)."l'i0 ' private
claims to submerged land can therefore be settled only on a case-by-case
basis,'"" and North Carolina has only begun the task ofdjt iining
their validity." 17As a practical matter, however, it may bier tant
whether title to certain parcels of submerged lands is held bby 'pvate
'parties; 'ince the title originally held by the state was burdened with a
public trust, the grantee of the state could not obtain a better title than

308

his grantor."'l It would appear, therefore, that private parties would
also hold such lands subject to the trust, and observance of the trust
would generally require that such lands be maintained in their natural
state.T12 Government regulation of these lands in order to preserve the
trust would not appear to present any "taking" problem.'73
These ownership and acquisition powers of state and local govern-
ments have great potential for use as a policy instrument in coastal zone
management. They should be systematically employed to implement
planning and to protect areas of environmental concern where regula-
tion is impractical or unconstitutional. In order to be fully effective,
however, they must be used in ways that are consistent, or at least
coordinated, with the coastal management plan."4

B. Additional Possible Uses of the Acquisition Power
1. Transferable Development.Rights. Transferable Development
Rights (TDR) systems have rising importance in the land use planning
field.17 Originally developed and used as a means of preserving central
city landmarks, TDR is now being experimented with as a tool to
preserve existing open spaces and environmentally sensitive areas
through the transfer of development rights to other areas from the land
sought to be preserved. Pilot programs and variations of TDR are
being considered or used by local governments in several states.178
The prototype of the use of the TDR for ecological preservation is
the plan developed by Professor John J. Costonis for Puerto Rico."'
This involves the designation of environmentally sensitive areas as well
as the earmarking of lands where greater development would be desira-
ble. Criteria would be established for environmentally sensitive areas so
that any development which would damage the protected resources
would be prohibited. Owners of other lands would be subject to two
sets of zoning restrictions: they would be free to develop their lands up
to the limits provided in the first set of restrictions, but they would have
to purchase development rights from a government planning board if
they wanted to develop further, up to the limits provided in the second
set. The fund thus established would be used to compensate owners of
environmentally sensitive lands who are denied a reasonable return
because of applicable restrictions.178 As thus conceived, TDR becomes
an innovative method to supplement regulatory restrictions by providing
compensation for lost land values.
It is evident that before this or any other variation of a TDR system
can be used as a technique to implement coastal zone management,
many legal and policy questions must be resolved. It is uncertain
whether such a concept could withstand constitutional attack.""' Fur-
thermore, TDR systems have never been attempted in a relatively large
geographical area, such as the North Carolina coastal zone. Neverthe-
less, a TDR program may have value in coastal zone management, and
appropriate enabling legislation should be passed in order to encourage
local jurisdictions to experiment with this device.
2. Land Banking. Land banking is another use of the govern-
ment acquisition power that has been proposed as a way of promoting
more efficient land development patterns and conserving natural re-

309

sources.'8 Although it has been successfully used elsewhere,181 land
banking is an untried mechanism in the United States. The technique
involves the purchase of land by government in amounts sufficiently
Iarge that land use patterns are affected, the holding of land without
immediately committing it to a specific future use, and the gradual
disposition of the land to government and private parties.
The use of this technique has been encouraged by recent develop-
ments. 'The federal Community Development Act of 1974 allows the
use of federal funds by local governments for the purchase of land for
"the guidance of urban development."'82 Moreover, the influential
American Law Institute (ALI) has adopted an article for the initiation
of a state system of land banking as a part of its Model Land Develop-
ment Code.'83 The ALI proposal would rely on a state land reserve
agency which would be empowered to acquire, hold, and dispose of
lands according to the policies and limitations of the state land develop-
ment plan.'84 Local governments would participate in the banking
system through agreements with the banking agency that designate the
latter as the local government's agent for the purpose of acquiring,
managing, and disposing of lands.'85
Here too, however, many legal, economic, and social policy ques-
tions must be resolved before land banking can be relied upon as an
instrument for coastal zone management. It is doubtful whether private
property can be acquired or condemned for some unspecified future
use."8 Furthermore, the technique would have a substantial impiJact on
'proerty tax revenues of local governments.'87 Land banking would
thus appear to be a useful policy instrument only in the long term, if at
all.
3. Natural Area Preservation Through a Land Conservancy Trust.
In contrast to transferable development rights and land banking propos-
als, which cannot be expected to play an immediate part in coastal zone
management, the Nature Conservancy Trust device is a potentially
important tool for preservation and the implementation of planning. In
North Carolina, the Land Conservancy Corporation is authorized to
purchase and accept donations of fee and lesser interests in land and to
hold them in their natural state.'88 It is operated by a nine member
board of trustees."l This public body could be effectively used in
coastal zone management to implement a planned program for the
acquisition of natural areas, including development rights and conserva-
tion easements, in the coastal area. The pattern of acquisition could be
designed to ensure the survival of the biotic diversity and natural
systems of the region. The Land Conservancy Corporation also has
flexible powers for rapid acquisition of areas of environmental concern
that have been so designated by the Coastal Resources Commission and
are threatened with development.'90 It is also empowered to enter into
agreements with local governments and state agencies9"' and could thus
act as an agent for local governments and state agencies in land acquisi-
tion where ultimate disposition is to be made to them.'?9 The Corpora-
tion can also accept donations and bequests of lands and money,'9g and
should promulgate information on the substantial tax advantages under
existing law which accrue to such gifts and bequests.'94

310

CONC:LUSION
States that are in 'the process of instituting 'rgional l:aidse
planning for the purpose of protecting valuable resources- a tical
-environmental areas will soon face the problem of how to ni ent
their plans. They will find that the traditional legal tools for hi en
tation of planning are inadequate for the task. Newer land uii'e guid-
ance techniques, such as growth-control systems, land banlig, and
transferable development rights, while-valuable, have not beiesuffi-
ciently developed or tested to serve as realistic alternatives fr the im-
plementation of planning in a geographically large region, 'Thi' Article
has presented a third alternative, the coordinated use of traditional
mechanisms to influence land use through government regulation, tax-
ing, and acquisition. This land use guidance mechanism can'be insti-
tuted largely without additional legislation; to realize the full potential
of this method, however, legal reforms are needed, especially on the
local level. The keys to the success of such an approach are intergov-
ernmental cooperation by federal, state, and local decision-makers, and
the awareness of their respective powers and the functions of these
powers within the land use guidance system. -

311

SECTION 4: CONSTITUTIONAL ISSUES
JUST v. MA.TNETTE COUNTY

56 Wis.2d 7, 201 N.W. 2d 761 (1972)

These two cases were consolidated for uses requiring a permit under sec. 3.-12(-1)
trial and argued together on appeal. In is the filling, drainage or dredging of vwet-
case number 106, Ronald Just and Kathryn lands according to the provisions of sec. 5
L. Just, his wife (Justs), sought a declara- of the ordinance. "Wetlands" are defined
tory judgment stating: (1) The shoreland in sec. 2.29 as "(a)reas where groull wlter
zoning ordinance of the respondent is at or near the surface much of the year
Marinette County (Mlarinette) was ulcon- or where any segmenelt of plant cvcr is
stitutional, (2) their property was not "wet- deemed an aquatic according to N. .'.
lands" as defined in the ordinance, and (3) Fassett's "Manual of Aquatic Plants." Sec
the prohibition against the filling of wet- tion 5.42(2) of the ordinance requires ;t
lands was unconstitutional. In case number conditional-use permit for any filling or
107, Marinette county sought a mandatory grading "Of any area which is within three
injunction to restrain the Justs from plac- hundred feet horizontal distance of a
ing fill material on their property without navigable water and which hals stt f;ace
first obtaining a conditional-use permit as drainage toward the water and onl lhich
required by the ordinance and also a for- there is: (a) Filling of more tli;ni five
feiture for their violation of the ordinance hundred square feet of any wetland whichl
in having placed fill on their lands without it contiguous to the water . . (d)
a permit. The trial court held the ordi- Filling or grading of more than 2,()()()
ance was valid, the Justs' property was square feet on slopes of twelve petr rcnt or
"wetlands," the Justs had violated the ordi- less."
Dance and they were subject to a forfeiture
of $100. From the judgments, the Justs In April of 1961, several years prior to
appeal. the passage of this ordinance, the .lusts
[2J1'Thiere can be no disagreement over purchased 36.4 acres of land in the town
the public purpose sought to be obtained by of Lake along the south shore of L.ake
the ordinance. Its basic purpose is to pro- Noquebay, a navigabl)e lake in Mtarinette
rt et navigable waters and the public rights county. This land had a frontage of I,-
therein from the degradation and deteriora- 266.7 feet on the lake and was purlchased
tion which results from uncontrolled use partially for personal use and partially for
and development of shorelands. [n the resale. During the years 1964, l')(,, :alll
Navigable Waters Protection Act, sec. 144.- 1967, the Justs made five sales of parcels
26, the purpose of the state's shoreland having frontage and extending back from
regulation program is stated as being to the lake some 600 feet, leaving the properly
"aid in the fulfillment of the state's role involved in these suits. This proplrty has
as trustee of its navigable waters and to a frontage of 366.7 feet and the south onle
promote public health, safety, convenience half contains a stand of cedar, pile, vari-
and general welfare".' In sec. 59.971(1), ous hard woods, birch and red malile. 'Tlie
which grants authority for shoreland zon- north one half, closer to the lake, is barrell
ing to counties, the same purposes are re- of trees except immediately along the sll,,re.
affirmed.2 The Marinette county shore- The south three fourths of this north
land zoning ordinance in secs. 1.2 and 1.3 one half is populated with varions plant
states the uncontrolled use of shorelands grasses and vegetation including some
and pollution of navigable waters of plants which N. C. Fassett in his manual;t:
NMarinette county adversely affect public of aquatic plants has classified as 'aquatic."
health, safety, convenience, and general There are also non-aqcuatic plants which
welfare and impair the tax base. grow upon the land. Along the shli-elinl
The shoreland zoning ordinance divides there is a lielt of trees. The shoreline is
frmrn one foot to 3.2 feet higher thi;u lie
the shorelands of Marinette county into from one foot to 3.2 feet hisher thiti tio
general purpose districts, general recreation lake level and there is a narrow belt lof
districts, and conservancy districts. A "con- higher land alorng the shore klnowin I;;.
servancy" district is required by the statu- press ridge" o "ice heave," varying il.
tory minimum st]wndards and is defined id th from onte to three feet. South oi
in sec. 3.4 of the ordinance to include "all this point, the ral level of the
shorelands designated as swamps or ranges one to two feet above lake icvIl
marshes on the United States Geological The land slol)cs generally toward the like
Survey maps which have been designated but has a slope less than twelve per cenlt.
as the Shoreland Zoning Map of Marinette t
aiS the Shoreland Zon~ing MLap of Marinette No water flows onto the land from the lake,
County, Wisconsin or on the detailed In-
sert Shoreland Zoning Maps." The ordi- lects on land and stands in pools.
nance provides for permitted uses 3 and
conditional uses.4 One of the conditional 312

The lan( owned by the Justs is designatedl The securing or taking of a benefit not
as swatrnps or marslhes on the United Statec presently enjoyed by the public for its use
(I-ological Survey Map and is located with- is obtained by the government through its
ill 1,()()0 feet of the norilal high-water power of eminent donl;iln. The distinction
clcvation of the lake. Thus, the property is between the exercise of the police power
iichlldedl in a conse rvanlcy district and, by and condemnation has been said to be a
sec. 2.29 of the ordinance, classified a; matter of degree of damiage to the property
%Ectlands." C(onsequently, in order to place owner. In the valid exercise of the police
Morc than 50() S(Iltuae feet of fill oil this power reasonably restricting the use of
I)roplcrty, the Justs were required to obtain property, the damage suffered by the owner
.1 conditional-nse permlit froll the zollinlg is said to he incidental. However, where
:admlinistrator of the comity and pay a fee the restriction is so great the landowner
of $21) or incur a forfeiture of $10 to $201) ought not to bear such a burden for the
for each day of viola;tion. public good, the restriction has been held
to be a constructive taking even though the
In Ielruary and March of 1968, six actual use or forbidden ulse has not been
Imonths after the ordina:ce became effeco transferred to the govermnilent so as to be
live, Ronald Just, witllout securing a con- a taking in the traditionmial sense.
ditimnul-use pernit, iilite(l 1,04(0 square Whether a
yalids of sandfl onto this pIrolelrty anal filled
d onto this orty a fi taking has occurred depends upon whether
ana area approxialiyiMCl 2U-fect wide coin
ainc arinea approxinuathlw t c r-feetr wide coei.N "the restriction practically or substantially
mivmicing almost the southwest ortir atod toxr- renders the land useless for all reasonable
tcidiiig almost 600 feet north to the north-
purposes." Buhler v. Racine County,
n west corner near the shoreline, then easterly
supra. The loss caused the individual must
ahImgIlt the shoreline :alhost to the lot line.
sorlin almos o lo lin. b weighed to determine if it is more than
HIIc stmayed back frotmrii the press~ure ridtge he should hear. As this court stated in
allout 20 feet. More than 500 square feet
.5'telart, at pp. 369-370, 124 N.W.2d 319,
(if this fill was upon wetlands located col- if th daag is such as to
p. 323, . . if the damage is such as to
11o'tlotls to the wrater and whiCh had surfact.
ignlonls to the IWater anled whlich hard surface bIe suffered by many similarly situated and
dt1tin:tge tovwardl the latke. T he fill withi.
is in the nature of a restriction on the use
3i(,O fect of the lake a lsu \\wst mTore tIh;lal
?3(t feet of t ile lake also,) wvas more thiiami to which land niay be put and ought to be
_. 110l sqlUar'e fleet onl it siIoe less tblzm 12
square feet oi a sloe less tan 12 borne by the individual as a member of
pIercctt. it is not serioullsly contended1 that
lile rim t It is not seriously contended that society for the good of the public safety,
the Justs didnot violate the ordinance ad health or general welfare, it is said to be
the trial court correctly found a violation.
a reasonalle exercise of the police power,
The real issue is whether the conserv- Ihut if the damage is so great to the in-
ancy district provisions and the wetlands- dividual that lie ought not to bear it under
filling restrictions are unconstitutional be- contemporary standards, then courts are
caulse they amount to a constructive taking inclined to treat it as a 'takings of the
of the Justs' land without compensation. property or an unreasonable exercise of the
Marinette county and the state of Wiscon- police power."
sill argue the restrictions of the conserv-
anicy district and wetlands provisions con-
Mlally years ago, I'rofessor lFreuned
stitute a proper exercise of the police stated ii his work on The Police Power,
power of the state and do not so severely
sec. 511, at 546-547, "it may be said that
limit the use or depreciate the value of the
the state takes property hly eminent domain
land as to constitute a taking without com-
beccause it is useful to the public, and under
the police power because it is harmful
. lrom this results the difference
To state the issue il more mean-
r To state the issue ii more meanl- between the power of eminent domain and
imgfill terms, it is a conflict between the
the police powel, that the former'ccog-
pIllic interest ill stopping the despoilation
of natural resources, which our citizens
hitter on principle does not." Thus the
until recently have taken as inevitable and e
necessity for monetary compensation for
for granted, andl an owner's asserted right
to use his property as he wishes. The pro- loss sffer to an owne r by police power
restriction arises when restrictions are
tection of public rights may be accom-
Iflished by the exercise of the police power placed o p roperty in order to create a
unless the damage to the property owner is pulilic benfit rather thrta to prevent a
too great and amollunts to a confiscation.

313

This case causes us to reexamine This is not a case where an owner
the-concepts of public benefit in contrast is prevented from using his land for natur
to public harm and the scope of an owner's al and indigenous uses. The uses consistent
right to use of his property. In the instant with the nature of the land are allowed and
case we have a restriction on the use of a other uses recognized and still others per-
citizens' property, not to secure a benefit mitted by special permit. The shoreland
for the public, but to prevent a harm from zoning ordinance prevents to some extent
the change in the: natural character of the the changing of the natural character of
citizens' property. We start with the prem- the land within 1,000 feet of a navig:Lble
ise that lakes and rivers in their natural lake and 300 feet of a navigable river lhr.
state are unpolluted and the pollution which cause of such land's interrelation to the
now exists is man made. The state of contiguous water. The changing of wet-
Wisconsin under the trust doctrine has a lands and swamps to the damage of the
duty to eradicate the present pollution and general public by upsetting the natural cl-
to prevent further pollution in its navigable vironment and the natural relationship is
waters.;' This is not, in a legal sense, a gain not a reasonable use of that land which is
or a securing of a benefit by the maintain- protected from police power regulation.
ing of the natural statuls quto of the en- Changes and filling to some extent are per-
vironment. What makes this case different mitted because the extent of such chalges
from most condemnation or police power and fillings does not cause harm. We rcal-
zoning gases is the interrelationship of the ize no case in \isconsin has yet dealt witl
wetlalnds, the swamps and the natural ien- shoreland regulations and there are several
vironment of shorelands to the purity of cases in other states which seem to hold
the water and to such natural resources as such regulations unconstitutional but
navigation, fishing, and scenic beauty. nothing this court has said or held in prior
Swamps and wetlands were once considered cases indicate that destroying the natural
wasteland, undesirable, and not picturesque. character of a swatnp or a wetland so as
But as 'the people hecame more sophisti- to make that location available for lulla
cgated, an appreciation was acquired that habitation is a reasonable use of that land
swamps and wetlands serve a vital role when the tiew use, although of a more
in nature, are part of the balance of nature economical value to the owner, causes a
and are essential to the purity of the water harm to the general public.
in our lakes andl streams. Swamps and
wetlands are a necessary part of the ecolog-
ical creatiou and now, even to the un- Wisconsin has long held that
initiated, possess their own beauty in natur-e laws and regulations to prevent pollution
and to protect the waters of this state from
degradation are valid police-jpower enact-
is the ownership of a parcel of meits. The active pullic
land so absolute that man can change its
nature to suit any of his purposes? The
spect to navigable waters 'requires tie
great forests of our state were stripped on
state not only to promote' navigation hlut
the theory man's ownership was unlimited state not only to pro
also to protect and preserve those waters
But in forestry, the land at least was used also to protect and
naturally, only the natural fruit of the
land (the trees) were taken. The despoil-
age was in the failure to look to the future To further this duty, the 'legislature
and provide for the reforestration of the may delegate authority to local units of
land. An owner of land has no absolute the government, which the state did lhy re-
and unlimited right to change the essential quiring counties to pass shoreiand zoniing
natural character of his land so as to use ordinances.
it for a purpose for which it was unsuited This, is not a case of an isolated
in its" natiural state and which injures the swamp unrelated to a navigable lake or
rights of others. The exercise of the po- stream, the change of which would cause
lice power in zoning must be reasonable no harm to public rights. Lands adjacent to
and we think it is not an unreasonable ex- or near navigable waters exist in a special
ercise -of that power to prevent harm to relationship to the state.
public'rights by limiting the use of private ..
property to its natural uses.

314

The restrictions in the MIarinlette thile state, a restrictio( of access to ;t higll-
coulty ordinance upon wetlands within way, while it mal;y decrease the value of the
1,000 feet of I.ake Noquebay which pre- land, does not entitl'c the owner to corn-
vent the placing of excess fill upon such penlsation. In Buhh'rl tlhe court held the
land without a permit is not confiscatory or mere depreciation of value was not suffi-
unreasonable. cient ground to enjoin the counlty froml
enforcing the ordinance, In II:lsslillger v.
Cases whereinl a conlfiscation was found llartland (l')-(), 234 Wis. 201, 2'0 N.W.
cannot be relied upontl ly the Justs. in 647, the court noted that "(a)ssuming an
State v. I-Ierwig (1962), 17 Wis.2d 442, 117
N.W.2d 335, a "taking" was found wheronable nuosane creatioo of
a' reg*ati o whi' prohd hg odors which make occupation of plailltiffs'
a regulation which prohibited huntitng on . i
farmland had the effect of establishing fa rm ntconvenient . . . a nd ar its
gae refug and rsuled in an unatra, value, it cannot be said that'defendanlt has
dispossessed plaintiffs or taken their prop-
concentrated foraging of the owner's land erty."
by waterfowl. In St~atte v. Becker, suplirl, The Justs rely on several cases from oth-
the court held void a law which established er jurisdictions which have held zoning
a wildlife refuge (and prohibited hunting) regulations involving flood plain districts,
on private property. In IBenka v. Consoli- flood basins and wetlands to be so confisca-
dated Water Power Co. (1929), 198 Wis. tory as to amount to a taking lieclnse the
472, 224 N.W. 718, the court held if dani- owners of the land were prevented from
ages to plaintiff's property were in fact improving such property for residential or
caused by flooding from a dtam constructed commercial purposes. While some of these
by a public utility, those damages con- cases may be distinguished on their facts,
stituted a "taking" within the meaning of it is doubtful whether these difterillces go
the condemnation statutes. In Bino v.
to the lbasic rationale which permlc;ltes the
rley (1955), 273 Wis. 10, 76 N.W.2 decision that an owner has a right to use his
571, the court held unconstitutional as a
"taking" witho.t c.ip anoproperty in any way and for any purlliose he
"taking" without compensation an ordi- sees fit. In Dooley v. Town ]'lail & Zon.
nance which, in attempting to prevent pol- Con, of lown of Fairfield (19(4), 151
lotioln, prohibited( the wnvilers of land stur- Conn. 304, 197 A.2d 770, the conrt hekld the
rounlding a lake fromn blathiing, bIoating, or restriction on land located in a flood plain
swinllninlg in the litkIc. Il Piper v. kkern
Swi ing i the ake i Piper v. Ekern district prevented its being used for resi-
(1923), 180 Wis. 586, 59.3, 194 N.W. 159, dential or business purposes and thus the
162, the court held a statute which limited r estriction destroyed the economic value
restriction destroyed the economlic value
the height of Ibildings surrounding the to the owner. The court recognized the
state capitol to ,e unnecessary for tile pub-
land was needed for a public purpose as it
lic health, safety, or welfare and, thus, to
c 'iistitte an ' .'r h was part of the area in which the tidatl
constitnte an ulnreasonable exercise of the
stream overflowed when abnormally high
police power. In all these cases the unrea-
tides existed, hut the property was half a
sonabl ness of he eercise of the polie mile from the ocean and therefore could
pcwer lay il excessive restriction of the not be used for marina or boatose pr-
natural use of the land or rights in rela- poses. In Morris County and . Co. v.
tion thereto. v.
Cases holdiilg the exercise of police pow- Parsippany-Troy Hills Tp. (1963), 40 N.J.
*er to lie reasomnalle likewise provide no 539, 193 A.2d 232, a flood basin zoning ordi-
assistance to Mallrinlctte coutlty in their nance was involved which required the con-
argument. Ini Alore-Way North Corp. v. troversial land to be retained in its natural
State Highw:ay (Conmm. (1969), 44 Wis.2d state. The plaintiff owned 66 acres of a
165, 175 N.W2Xd 74'), the court held that 1,500-acre swamp which was part of a river
n) "talking" occullrcd as a result of the basin and acted as a natural detention hiasin
state's lowerinig lthe grade of a highway, for flood waters in times of very heavy
which necessitatedl plaintiff's reconstruc- rainfall. There was an extraneous issue
tion of its parkinlg lot and loss of 42 parking that the freezing regulations were intended
spaces. In Viscollsill Power & Iight Co. as a stop-gap until such time as the govern-
v. Columbia 'Tn llty (19)58), 3 Wis.2d 1, 87 ment would buy the property under a flood-
N.W.2d 279, no "taking" was found where control project. However, the court took
the county, in relocating a highway, de- the view the zoning had an effect of pre-
posited gravel close to plaiintiff's tower, serving the land as an open space as a
causing it to tilt. In Nick v. State High- water-detention basin and only the govern-
way Comm., sulpra, the court held where ment or the puldlic would he benefited, to
propertyitself is not physically taken by the complete damage of the owner.

315

In State v. Johnson (1970), Me., 265 A.2d 1303, 284 N.E.2d 891. The court held the
711, the Wetlands Act restricted the altera- validity of the ordinance was supported by
tion and use of certain wetlands without valid considerations of public welfare, the
permission. The act was a conservation conservation of "natural conditions, wild-
measure enacted under the police power to life and open spaces." The ordinance pro-
protect the ecology of areas bordering the vided that lands which were subjctd to sea
coastal waters. The plaintiff owned a sonal or periodic flooding could nol bie used
small tract of ,a salt-water marsh which for residences or other purposes in sllch ;h
was flooded at high tide. By filling, the manner as to endanger the health, safety
land would be adapted for building pur- or occupancy thereof and prohibitedl thll
poses. The court held the restrictions erection -of structures or buildings which
against filling constituted a deprivation of required land to be filled. This case is
a reasonable use of the owner's property analogous to the instant facts. Th'I'e orl-
and, thus, an uln-reasonable exercise of the nance had a public purpose to preserve the
police power. In MacGibbon v. Board of natural condition of the area. No change
Appeals of I)uxluiry (1970), 356 Mass. 635, was allowed which would injure the pur-
255 N.E.2d 347, the plaintiff owned seven poses sought to be preserved and throligh
acres of land which were under water about the special-permit technique, particular
twice a month in a shoreland area. He was land within the zoning district could lie
denied a permit to excavate and fill part excepted from the restrictions.
of his property. The purpose of the ordi-
nance was to preserve from despoilage nat-
ural features andt resources such as salt The justs argue their prolJrlty ha;s
marsthes, wetlands, and ponds. The court been severely depreciated in value. lait
took the view the preservation of privately this depreciation of value is not based ol
owned land in its natural, unspoiled state the use of the land in its natural state lint
for the enjoyment and benefit of the public on what the land would be worth if it could
by preventing the owner from using it for be filled and used for the location of a
any practical purpose was not within the dwelling. While loss of value is to bie coIn-
limit and scope of the police power and the sidered in determining whether a restrictiiln
ordinance was not saved by the use of is a constructive taking, value hased iupon
special permits. changing the character of the laind at the
expense of harm to public rights is not an
[181 It seems to us that filling a swamp essential factor or controlling.
not otherwise commercially usable is not We are not unmindful of the warning in
in and of itself an'existing use, which is Pennsylvania Coal Co. V. Mahon (1922),
prevented, but rather is the preparation for 260 U.S. 393, 416, 43 S,Ct. 158, 160, 67 L. Eld.
some future use which is not indigenous to 322
322:
a swamp. Too mluch stress is laid on the. . . We are in danger of forgetting
right of an owner to change commercially that a strong public desire to improve the
valueless land when that change does dam- public olitioll is t enoug to rrat
age to the rights of the public. It is ol- a ch i eving the desire by a shorter ct than
achieving the desire Iby a shorter cut than
served that a use of special permits is a the constitutional way of paying for the
means of control and accomplishing the chalge."
purpose of the zoning ordinance as dis-
tinguished from the old concept of pro- This observation refers to the improvement
viding for variances. The special permit of the public condition, the securing of a
technique is now common practice and has benefit not presently enjoyed and to which
met with judicial approval, and we think the public is not entitled. The shureland
it is of some significance in considering zoning ordinaltce preserves nature, the en-
whether or not a particular zoning ordi- G;ironmcnt, and natural resources as they
nance is reasonable. were created and to which the people have
A recent case sustaining tile validity of a present right.0 The ordinance dloes not
a zoning ordinance establishing a flood create or improve the public contlitimll but
plain district is Turnpike Realty Company only preserves nature from the despoilage
v. Town of I)edham (June, 1972), 72 Mass. and harml resulting from the unrestricted
activities of humnans.

316

We nte te lot e the lower court dismissed we affirmed the circuit court which re-
thile action comnlelc(d by the Justs, although versed the county court in holding a city
it sought a declaratory judgment and the ordinance unconstitutional and pointed out
rights of the Justs were declared. This dis- the county court had decided a question of
nlissal is in conflict with the procedure constitutionality when one party was not
which this court has made clear should be counsel, the other side had
followedi, namely, that tlhe complaint should stated it was not ready for trial, without the
not be dismisse when contrary to the plain- enefit of briefs and without giving a writ-
tiffs' contention, but rather the judgment ten reason for the holding.
should set forth the declaratory adjudica-
tion. Although the practice for trial courts not
In commen:ting on the propriety of its de- to hold laws unconstitutional has not been
ciding the issue off constitutionality of the uniformly followed, nevertheless, it is our
or(Iiuance, the- trial court hquoted State v. belief many lawyers have and are bringing
Stehlek (1953),,, 262 Wis. 642, at 645, 56 SC
VStchlck (d19.SA)1, 2'2 Nis. 64d, at d45, 56> to the federal courts cases involving ques-
.NAV.2 514, 516s)):: tions of constitutionality of state laws hlc-
'Tlhe exercise Af the pawer to declare cause of the limitation placed on state
la.ws tinconstiutinlonaLl 11by inferior courts, courts in the exercise of the power to de-
should be careffully Iimtited and avoided if dare a law unconstitutional.
possible. The authorities are to the
effect that unless it appears clearly be- We think that when a colstitt-
yond a reasonatblel doubft that the statute tional issue is now presented to the trial
is unconstitutionali it is considered better
coturts of this state, it is the bettc r prac-
practice for the court to assume the stat- tice for those courts to recognize its i-
ute is constitutional, until the contrary is portance, have the issue thoroughly brief-
decided by a court of appellate jurisdic- ed, and fully presented. The issue should
tioui, be decided as any other, important issue
with due consider.'tion, The practice of as-
This view has consistently been followed.
suining constitutionality, until the contrary
In Greg- is decided by an appellate court, is no long-
orski the district court of Milwaukee held a er necessary or workable. Of course, a
statute constitutional and we affirmed the presumption of constitutionality exists un-
holding of constitutionality by the circuit til declared otherwise by a competent court,
court'when it denied a writ of prohibition. which we think the trial courts of Wiscon-
We pointed out the above language did not sin are, because a regularly enacted statute
justify an inference the trial court could is presumed to be constitutional and the
not pass upon the constitutionality of a stat- party attacking the statute must meet the
ute. In Whitc HoIlse we reversed the cir- burden of proof of showing unconstitution-
cuit court's holding of unconstitutionality ality beyond a reasonable doubt.
and quoted the Stchlek Case without com- The Judgment in case ?ubher 106, dis-
ment. In Aissociated Hospital the circuit missing the Justs' action, is modified to
court denied summary judgment on the set forth the declaratory adjudication that
ground the constitutionality question re- the shoreland zoning ordinance of respond-
quired hearing evidence. We recognized ent Marinette County is constitutional;
the circuit court's power to decide the issue that the Justs' property constitutes wet-
and stated we were hesitant "to lay down lands and that particularly the prohibition
any rule governing the exercise of discre- in the ordinance against the filling of wet-
tion by trial courts, when confronted with lands is constitutional; and the judglnct,
an issue of constitutionality of a statute on as so modified, is affirmed. The judg-
demurrer or motion for summary judgment
melt in case nulmber 107, declaring a fol-
." but stated "it is better practice for
feiture, is affirmed.
it to assume the statute is constitutional un-
til the appellate court has passed upon it ex-
cept where unconstitutionality is apparent
beyond a reasonable doubt." In Hoffmnann

317

NOTE ON THE TAKING ISSUE

An understanding of the current diversity of opinion concerning
the "taking" issue begins with the final phrase of the Fifth Amendment:
"...nor shall private property be taken for public use without just
compensation," U.S. Constitution, Amendment V. For a historical review
of the English and American law which produced this phrase, see
Bosselman, Callies and Banta, The Taking Issue 51-104 (1973).
In Mugler v. Kansas, 123 U.S. 623 (1867), the Supreme Court
supplied the foundation for a strong police power requiring no compen-
sation to damaged property owners. Mugler owned a brewery that became
nearly worthless when the state passed legislation forbidding the manu-
facture or sale of alcohol. The court rejected the argument that the
theory of eminent domain governed, under which no property could be
taken for public use without compensation, even where the state did so
to abate a nuisance. Affirming the state's right to make some uses of
land unlawful, Justice Harlan wrote:
A prohibition simply upon the use of property for purposes
that are declared by valid legislation, to be injurious to
the health, morals or safety of the community, cannot, in
any sense, be deemed a taking or an appropriation of property
for the public benefit. Such legislation does not disturb
the owner in the control or use of his property for lawful
purposes, nor restrict his right to dispose of it, but is
only a declaration by the State that its use by any one, for
certain purposes, is prejudicial ...to the health, morals, or
safety of the public...The power...cannot be burdened with
the condition that the State must compensate such individual
owners for pecuniary losses they may sustain, by reason of
their not being permitted, by a noxious use of their property
to inflict injury upon the community..., 123 U.S. 623,668-9.
Thus, Mugler focuses on the nature of the regulation to test whether there
has been a taking in the guise of of police power regulation. Upon deter-
mination that the regulation was not an eminent dlomain- taking, tie court
narrowed the issue to whether the police power statute had a rational
relationship to the public welfare.
Pennsylvania Coal Co.v. Mahon, 260 U.S. 393 (1922) was a radical
departure from Mugler. Engineered by Justice Holmes, the case presented
a balancing test, on the theory that the difference between the police
power and the power of eminent domain was not one in kind, but only in
degree: "The general rule at least is, that while property may be regulated
to a certain extent, if regulation goes too far, it will be recognized as
a taking,," 260 U.S. 393,413. The Mahons owned a house and lot bound by
a valid and not uncommon covenant to permit the Company to mine coal beneath
the surface of their land without liability for damages caused thereby. In
response to the serious problem of mine subsidence, the Kohler Act forbade
mining so as to cause any collapse of dwellings or other specified structures.
The court found that the denial of the right to mine coal was a total depri-
vation of the Company's property rights. Thus, the Act could not be sus-
tained under the police power:
Government hardly could go on if to some extent values inci-
dent to property could not be diminished without paying for
every such change in the general law. As long recognized,
some values are enjoyed under an implied limitation, and must
318

yield to the police power. But obviously the implied
limitation must have its limits. .One fact for consideration
in determining such limits is the extent of the diminution.
When it reaches a certain magnitude, in most if not all
cases there must be an exercise of eminent domain and com-
pensation to sustain the act, 260 U.S. 393,413.
The impact of Holmes' opinion has been incalculable, despite the fact
that no precedent supported his balancing test. Because Mahon did not
overrule M ugler, debated continued over which test should be applied.
Following Mahon, the extent to which the diminution can be carried was
evidenced in Hadacheck v. Sebastian, 239 U.S. 394 (1915). The court
sustained an ordinance which reduced the value of a brickyard from
$800,000 to $60,0OO. The land on which the brickyard was situated had
soil particularly suited for manufacturing bricks, but the area had
developed into a residential section. Despite the tremendous loss in
value, the petitioner was free to use the property for residential
purposes, or to remove the clay to another location for manufacture.
The Supreme Court has yet to clarify this confusion. In one of the
significant zoning case in recent years, the court again declined to
present a specific formula to decide the taking issue: "There is no set
formula to determine where regulation ends and taking begins," Goldblatt
v. Town of Hempstead, 269 U .S. 590,594 (1962). Goldblatt owned a 38-acre
tract within the town, on which it mined gravel. The excavation formed
a lake, ultimately covering 20 acres, around which residential areas
developed. The suit challenged an ordinance forbidding excavation below
the water table. The court used the Mahon balancing test, but quoted
Mugler extensively in emphasizing the difference between the police power
and eminent domain. Having narrowed the issue to whether the prohibition
was a valid exercise of the police power, the court held that plaintiff
failed in its burden of proving that the ordinance was unreasonable.
Lower court decisions reflect various responses to this dichotomous
precedent. Because no single rationale exists for determining when a
taking has occurred, state courts have produced widely divergent tests.
The Maine Supreme Court has applied a diminution of value test. Tn
State v. Johnson, 265 A .2d 711 (i.e.1970), the Johnsons appealed an injunc-
tion granted under the Wetland Act, which denied them permission to fill
a portion of their small tract of land. The court considered the extent
to which appellants were deprived of their usual incidents of ownership.
Accepting a finding that, absent fill, the land had no commercial value,
the court also noted that the Act provided a benefit to the public:
The cost of (the wetlands) preservation should be publicly
born. To leave appellants with commercially valueless land
in upholding the restriction presently imposed, is to charge
them with more than their just share of the cost of thiL
statewide conservation program, granting its fully commen-
dable purpose," 265 A.wd 711,716.
Compare Johnson with In the Matter of Spring Valley Development,
in which the same court upheld a zoning law. The commercial subdivider
of a 92-acre tract attacked the constitutionality of a law requiring

319

it to present evidence to show that its proposed development met
certain standards. Affirming the Act, the court held:
Nothing in the record indicates an unreasonable burden
upon the property-as would equal an uncompensated taking...
The record demonstrates only that the...land cannot be sold
for residential purposes while subdivided to the extent and
in the manner Lakesites originally planned," 300 A.2d 736,749.
The Maine court also generally affirmed the police power limitation
on land where "the use is actually and substantially an injury or im-
pairment of the public interest," 300 A.2d 736,748.
This distinction between public benefit and public harm is the
basis for the test applied by the Massachusetts Supreme Judicial Court.
In Turnpike Realty Co .v. Town of Dedham, 362 Mass .221, 284 N .F..2d 891
(1972) a flood plain law was sustained as a valid act under the police
power on the ground that it saved the public form the harm of uncontrolled
use of land in the flood plain. The court cited Vartelas v. Water
Resources Commn., 146 Conn.650,654, 153 A.2d 822,b24 (1959):
The police power regulates use of property because
uncontrolled use would be harmful to the public
interest. Eminent domain...takes private property
because it is useful to the public.
Still another test is evidenced in Lorio v. Sea Isle City, 88 N.J
Super. 506, 212 A.2d 802 (1965) and Speigle v. Beach Haven, 46 N.J.479,
218 A.2d 129 (1966), in which two New Jersey courts applied an alternate
use test. In Lorio, the court found that compensation was required
where plaintiffs were denied any use of their land when the city built
dunes on their property as part of a plan to protect the city from
flooding. In Speigle, the New Jersey Supreme Court found that a pro-
hibition of construction beyond the dune line on plaintiff's property
was not a taking. The plaintiffs failed to produce evidence of any
economic use to which the property could be put, while the City of Beach
Haven submitted proof that destruction would be more severe without
the regulation.
Compare these holdings with the opinion in Just v. Marinette
County, supra.

320

J.M. MILLS, INC. v. MURPHY
352 A.2d 661 ( R.I. 1976)

The plaintiffs. a Rhode Island corpora- The defendant filed an answer denying
tion, together with certain individuals, are plaintiffs' allegations of unconstitn-
owners of approximately one hundred
tionality, and both parties proceeded to file
acres of land in the Towns of Cumberland motions for summary judgment. After
and Lincoln. 11n 1969, as part of a recla- memoranda of law were submitted by the
mation project, plaintiffs attempted to relo- parties and amicus curiae a hearing was
cate some 3800 feet of the Blackstone Riv- scheduled before a justice of the Superir
scheduled before a justice of the Superior
er where it rtan through their property. Court sitting without a jury. At the close
T'he director of Natural Resources re- of oral argument, the Superior Court held
quired plaintiffs to submit detailed plans of that the Act was not unconstitutional on its
the projected relocation, and after public face, denied plaintiffs' motion for summary
hearings onl the question, plaintiffs were judgment, and granted defendant's motion.
ordered to cease all filling operations and
to restore the river to its natural course. Judgment for defendant was entered on
October 18, 1973, and on October 23, 1'7.1.
On July 27, 197(1, plaintiffs filed a com- plaintiffs filed their notice of appeal to
plaint in Superior Court alleging that the this court. l)uring the pendency of the a;
department lacked jurisdiction over the re- peal, the Act was amended by P.L. 1)71,
location of the river. On July 2, 1971, aft- ch. 197, which in important part added a
er a hearing, judgmenelt was entered for subsection to � 2-1-21. On appeal, plail-
plaintiffs oil the grounds the department tiffs develop the same arguments of llcon-
lacked jurisdiction to order the reclamation stitutionality they offered below, direct i
stopped. this time towards the Act as amended.

On July 16, 1971, the Legislature passed We first address ourselves to the qines
the "Fresh Water Wetlands Act" (herein- tion of whether we should consider the ACt
;after termed the A;ct), G .I. 1956, � 2-1-18 as it existed at the time the case was heard
to � 2-1-24. The Act provides for regula- below or in its amended form. There is a
tion of all fresh water wetlands, a classifi- division of authority on the issue of
cation into which plaintiffs' property ad- whether an appellate court should applN
mittedly falls. It opens with a declaration the law existing at the time of its decisiol
of state policy in regards to wetlands; it or the law existing at the time of the jtldg
then proceeds to define the geographical ment below. Annot. 111 A..R. 1317
jurisdiction of the Act and to declare that (1937). This court has noted that the ris-
approval of both the director of the De- olution of this issue will depend on the pe-
partulent of Nlatural Resources and the culiar nature of the case presenting the is-
municipality in which the land is located is sue. Tnwoturey th. Carltn House of Pinrl i-
required before a wetland may be altered; dence, Inc., 113 .I. 264, 321) A.2d 9S
the procedure for obtaining such approval (1974). Thus in recent years we have
is outlined and the Act closes with a delin- reached differing results when confronted
eation of the authority of the director to with different kinds of cases.
respond to violations of the provisions of
the Act. Other jurisdictions have generally held
that the right to an injunction will he de-
On May 18, 1973, plain termined on appeal according to the law
plaint for a ldeclratolry judgment alleging prevailing at the tine the decision is ri
that unless defendant, the director of De- dered on the theory that the rights at issue
partment of Natural Resources, is re- are future rights only.
strained from enforcing the Act they will -
sutiffer irreparable harm. The complaint We note that the instant
further alleges that the Act is unconstitu- action is for a declaratory judgment and
tional on its face in that it is an unlawful could not possible involve the abrogation
delegation of legislative authority, that it of substantive rights already vested, the
denies its subjects the equal protection of rights in question are all in future.
the law, and that it deprives the landowner
of the beneficial use of his property with-
out just compensation.

321

We also note that in zoning cases we The plaintiffs' first contention is that
have applied the law prevailing at the time the Act attempts to delegate legislative
of our decision on the theory that the puil- power in violation of R.I.Const. art. I\',!
lic's interest in the zoning scheme should �� 1 and 2. The delegation is conltaintll in
outweigh the individual's right to obtain a � 2-1-21, as amended lJy P.L.1974, ch. 1',;,
permit, at least in the situation where the and gives to the director of the l))epart
landowner has not relied to his detrimentit Ineilt of Natural Resources anll the miulili-.
,on the original ordinance. Goodman 7. pality in which the land is located, the art-
Zoning Bd. of cN'vie7', supra; A. Ferlhmd thority to approve or disapprove a la;l-
& Sons v. ZonliJ!g Ml'd. of Revieqw, 1(15 R.l. owner's application to alter the chal-;lcl-
275, 251 A.2d 536 (196')). A similar hal- of any fresh water wetland. Section 2--]-
alice of interest obtailns in the instant case 21 reads ill relevant part as follows:
except that here the landowners are actual-
lv requesting that the Act be considered 'Such approval will he denied if in the
;armeiled. opinion of the director granting of such
approval would not be in the best pullit
This factor of the public intelest in the interest. Such approval shall no(t he
result of tih( decision may Ie applied to the granted if the city council or town C(In..
question of what law should govern the de- cil of the town within whose border-s lie
cision in a somnewhat different way. The project lies shall have disapprovedl uilh-
United States Supreme Court has suggest- in forty-five (45) days period' provided
ed that in a suit involving the limited con- for objections set forth in � 2--1- 22.
ccrns of two private parties, a court should Appeal from such denial may be Inlade to
attempt to avoid a construction having a the superior court."
retrospective impact on the rights of the
parties, but that where great public rights does not clo ak re th le gislative delgation
are involved a construction of the present does not cloak the ta aislative dclof ;lio
impact of the law should be attempted. with sufficient stplo dardls codfinit the ec
Untitdcfl StaicLs 7'. SchoomwdLL't P'egg/y 5 UJ.S. ercise of the power delegated to the pIl,liC
(] Crancih) P1).39 I2.F:d. 49 (1801), cited w~y welfare sought to lie served. ''hcv also
Annot., 111 A.L.R... s:p/rall at 1326. In the argue that it fails to provide adequate
instant case, plaintiffs are attempting to guidelines for meaningful judicial revico.
litigate the v;alidity of a legislative enact-
The uondlelegation doct ;'inl ill
mntent affecting the rights of all owners of
Rhode Island stems from R..Conlst. alt.
wketlands and not merely the impact of theV, I and 2, which rids tht
IV, �� 1 and 2, which provides that tlhe
.\ct upon their ownl piece of property.
Rhode Island Constitution shall he thie su-
Finally, the determination that an aplpel- preme law of the statecani-iit- under tiW'
late court should almply the law prevailing Constitution the legislative power shall be
at the time of the decision below is based vested in the two houses of the Legislature.
on the postulate that the basic function of These sections, however, are not construcd
anl appellate court is to review the judg- to prohibit entirely the delegation of legis-
ments made below for errors of law. lative power.
While we sulbscril)e to this view as a gen- To the contrary
eral principle, it is clear that its application they have been held to require only that a
is of substantially less force in a declarato- delegation of legislative power be cloaked
ry judgment action which presents pure is- with adequate stanldalrds. '-
.sues of law on which the appellate court
must in any case render alln independent With this relaxation of the notdelega-
judgment. tion doctrine has come the realization that
the adequacy of legislative standards canl-
The comblilledl weight of these vari-
not be mninlilngfully measured against somne
oils factors convinces us that we should abstract limitation contained in R..(olust.
pass on the constitutionality of the Act ill
art. IV, �� 1 ant 2. Thus recent dceisimlls
its amended formll. Wl'e proceed nlow to an
have talen into account StlCh factors as tile
examination of plaintiffs' various allega- nied of the Legislature to utilize an admii-
tions ofl unconistitlutiolnality. _ istrative agent to accomplish the purposes
of the legislation and secondly public beec-
fit accruing from the enactment of legisla-
tive standards to accompany the delegation,
B322

In Pascale ?'. C'apurdi, 95 R.I. 38, 41, Secondly, the Legislature in �� 2-1-18
182 A.2d 435, 436 (1962), we concluded and 2-1-19 has set forth basic legislative
that a delegation to the director of public policy in the area of wetlands. Section 2-
works was valid where it was "* * * 1-18 recognizes specifically, the: valnable
the most practical manner in which the function played by wetlands in acting as
legislative powmer to condleln may be exer- buffer zones and absorption areas for flood
cised." Likewise in Cify of IW/1ar-wick v. waters and providing both wildlife habitats
Wl'farwick lcqidar lFircmen's Ass'n, supra, and recreational areas. The section goes
at 113, 256 A.2d at 209 we stated that: on to say that protection of such wetlands
for those and other stated purposes is in
lWhere the lurposcs of the antecedent
the "best public interest." Section 2-1-19
lcgislative emactnment may te best accom-
reiterates that it is state policy to preserve
pilished through the employment of an
.dihd through te wetlands and declares that in order to ac-
agent acting in its stead, the legislature
complish this purpose, wetlanjds shall be
may delegate to that agent a sufficient
regulated under the police power.
portion of its power to enable it to make
the statute operative." It is our opinion that the repetition of
"best public interest" in � 2-1-21, the dcle.
In addition to this practical limitation on gation section, may reasonably, be con-
the standards required for a valid delega- strued to incorporate the contents of �� 2'-
tion is the conclusion that the adequacy of 1-18 and 2-1-19. Thus � 2-1-21 delegates
legislative standards may best be measured to the director the authority to disapprove
against their intended purposes. In City an application whenever the proposed proj-
of _Wa'rwick v. Warwick Rcgular Firc- ect would thwart the policies expressed in
men's Ass'n, supra, for example, we con- � 2-1-19 to preserve wetlands in order that
eluded that the standards prescribed in the they may continue to carry out, the func-
legislation were sufficient to accomplish tions expressly enumnerated in'� 2-1-18.
their bifurcated purpose of limiting the This court has consistently held that the
discretion of the administrative delegatees stated purposes of a legislative enactment
and providing a basis for judicial review are relevant to the issue of whether the
of the actions taken pursuant to the au- delegation was adequately cloaked with
thority delegated. standards.

With these general principles in mind, We conclude that the Legislature
we proceed to consider the validity of a has thus enacted into law the general poli-
delegation of authority to the director of cy of preserving fresh water wetlands in
the Department of Natural Resources to order that the functions of these wetlaluds
disapprove applications to alter fresh water as enumerated in � 2-1-18 may continue to
wetlands. Section 2-1-21 requires anyone be fulfilled. Pursuant to this authoritative
who would alter the character of a wetland statement in the best public interest, an ad-
to obtain the approval of the director and ministrative official has been .elegated the
fixes the governing standard as the "best power to make case-by-case determinations
public interest." The plaintiffs argue that of whether a proposed project would sig-
this is not a meaningful standard. In re- nificantly inhibit the present valuable func-
sponse to this contention, we first note that tions of wetlands. In our opinion the
the director is given jurisdiction over only statements of purpose and policy 'contained
a very limited area, wetlands. The term in the Act adequately limit the discretion
"wetlands" is precisely defined in � 2-1-20. of the director, and the Act therefore does
[n a previous case where this court found not violate R.I.Const. art. IW 1 and 2 in
a valid delegation of authority to the granting authority to the director of the
Blackstone Valley Sewer District Commis- Department of Natural Resoutrces accord-
sion, City of (entrlzl 1Fals -v. Hlalloran, 94 ingly to disapprove applications to alter
R.I. 189, 179 A.2d 571) (1962), we placed fresh water wetlands.
great weight oal the fact that the adininis-
trative"agency was given discretion to act We move nlow to a colsideratiol of llr:
only in a well-defined geographical area. delegation of authority to municipal units
H-lere, also, the scope of administrative au- to disapp;rove an application to alter a wet.
thority is clearly confined. land. Section 2-1!- 1(a) states in pertinent
part that:

323

E* * * * approval shall riot be grant- economy and believing the parties intended
ed if the city council or town council of to incorporate these arguments, we will
the town within whose borders the proj- briefly consider the issues.
ect lies shall have disapproved within the At the outset the parties would undoubt-
forty-five (45) days period provided for edly accept the principles that the Legisla-
objections set forth in � 2-1-22." ture may neither authorize .arbitrary or
otherwise unconstitutional action by a city
The plaintiffs argue that this constitutes a
delegation without even the best public in- or town council nor delegate the authority
terest standard and is therefore invalid. to do what it could not do itself, and that
there exist potential limitations on the au-
Assutming, without deciding, that thority a delegatee may exercise other
the nonlielegation doctrine applies equally than those arising from R.I.Const. art. IV.
to the conferring of legislative power upon
a unit of local government as to like dele- The authority delegated by � 2-1-
gation to a legislatively-created agency, we 21 is the authority to regulate the use of
would find no violation of that doctrine fresh water wetlands within municipal
here. The clear thrust of � 2-1-21 is to boundaries. This court has held that the
confer upon the director the authority to exercise of such power is the exercise in
decide whether a proposed wetland altera- part of the state police powers Atlantic
tion is in the "best public interest," which Tubing & Rlibber Co. v. City C(ouncil, t).5
determination is to be made by him, as we R.I. 584, 254 A.2d 92 (1969);, S 6ute v.
have already indicated, by reference to the Krtak, 97 R.I. 156, 196 A.2d 417 (1964).
express legislative statements of purpose
and policy contained in �� 2-1-18 and 2- a municipality's authority to regulate the
1-19. To read the final sentence of � 2- use of private property within its jurisdic-
1-21 to confer upon local government the tion, being an exercise of the police power,
is not inherent and is possessed by the nun-
power to disapprove a proposed wetland is not inheret and is possessed by the -
chae without reerrd to da throsed sawe taurn nicipality only by a grant from the Legis-
lature. We went on to say that the exer-
pose and policy standards would be, in our
opinion, a highly dubious if not absurd cisc of such authority must be in accord-
construction of that sentence and one we ance with the limitations on the police
are therefore unable to accept. Thus, power. It is settled law that t'iie exercise
while there are no express limitations of the state's police power by municipality
placed on a town's or city's authority under inustbe consistent with the law-and policy
of the state and that such exercise must
� 2-1-21, the same standards that control of the state and that such exe
the director's determinations obtain by im- not be arbitrary, capricious, or cofiscato-
plication to actions taken thereunder by lo- ry. McQuillin, slnpra, � 24.46.
cal governmental units.i As these inherent limitations on the
exercise of the police power are necessari-
This would mark the conclusion of our ly included in � 2-1-21, the city and town
inquiry into the validity of powers delegat- councils have been granted the authority to
ed by this Act were it not for the fact that disapprove an application to alter a wet-
plaintiffs' brief on appeal attacks not only land only where such disapproval would
the dearth of standards in � 2-1-21 but not violate the constitutional rights of the
also the nature of the authority delegated landowner and where it is in accordallce
to the municipalities. They characterize with the state policy on wetlandi'as estab-
this authority as an "unfettered, arbitrary lished in �� 2-1-18 and 2--19'of this Act,
and capricious veto power." Furthermore, That being so, we conclude that the au-
the parties have stipulated that the decision thority granted by � 2-1-21 is not ulcon-
of the Superior Court in the case of Cola- stitutional on its face as a denitl of sulb-
pictro et al. v. Murphy, C.A. No. 74-1734 stantive due process.
may be added to the record before us.
The text of this decision develops an argu- Nor does � 2-1-21, as writtel, deny a
ment which attacks the delegation to a mu- landowner procedural due process. Tl ie
nicipality of power to disapprove an appli- Act grants the municipality the :power to
cation to alter a wetland on the grounds of share in the regulation of wetlaids within
denial of due process under U.S.Const. art. its boundaries, but it does not specify the
XIV, � 1. In the interests of judicial procedures by which this municipal regula-
tion is to be accomplished.2

324

Having concluded, however, that The Coastal Wetlands Act envisions af-
a city or town council may disapprove an firmative action on the part of the Depart-
application under � 2-1-21 only if the "best ment of Natural Resources to the end of
public interest" would otherwise be violat- establishing a statewide plan f6r the pro-
ed, it follows that its proceedings are judi- tection of wetlands. The instant Act, on
cial in charactel- and that, as a condition the other hand, sets out a permit procedure
precedent to those actions, an applicant is whereby the landowner is required to initi-
entitled even in the absence of statutory ate the proceedings. 'This difference in
language providing therefore to due notice overall approach is susceptible to-a variety
of a hearing, and an opportunity to be of reasonable explanations: the greater
heard and offer evidence. Sec Davis v. 'development pressure on coastal wetlands
Cousineau, 97 R.l. 85, 196 A.2d 153 (1963); suggests the need for immediate state ac-
Cugini v. Chiaradio, 96 R.I. 120, 189 A.2d tion while the situation regarding fresh
798 (1963); Anicllo v. Marcello, 91 R.I. water wetlands might not be so pressing;
198, 162'A.2d 270) (1960), Norton v. Ad- the high incidence of state-ownership in
anms, 24 R.I. 97, 52 A. 688 (1902). Wheth- coastal wetlands might facilitate central-
er the municipal council has succeeded in ized action while the almost exclusively
satisfying those preconditions in a given private ownership of fresh water wetlands
case is a question that may he raised on ap- would tend to hinder such an approach;
peal to Superior Court. By providing for jn- the probable interdependence' and interac-
dicial review, the Legislature has given the tions of coastal wetlands could necessitate
landowner the opportunity to attack the de- 'unitary state action while the more random
cision below ion the grounds that it denies pattern of fresh water wetlands might
him procedural or substantive due p'rocess thwart such an attempt.
or that it frustrates state policy by not tak-
ing cognizance of the considerations set Having in mind the need for sig-
out in �� 2-1-18 and 2-1-19. Should the nificantly different approaches to the regu-
municipal council fail to specify its find- lation of fresh and salt water wetlands, the
ings of facts or its reasons for disapproval, Legislature could reasonably conolude that
its decision should be dealt with by the Su- the two methods of regulation posed dan-
perior Court which is vested with jurisdic- gers of differing magnitude to the rights
tion to hear aplieals in such matters in the of private individuals. Thus they may
same manner as would be an appeal from have decided that a statewide program of
anll agency decision utnder the Administra- affirmative action, being less sensitive to
tive Procedures Act. We cannot say at individual circumstances, required the in-
,this time that � 2-1-21 denies a landowner clusion of prior hearings and'a provision
due process of law. for compensation, while a procedure that
The plaintiffs' second contention is that envisioned the processing of a series of in-
the Act denies them equal protection of the dividual applications required-: only the
law as guaranteed lby U.S.Const. anlend. availability of judicial review.to. ensure the
XIV, � 1. They allege that owners of protection,'of all constitutional' ights, in-
fresh water wetlands are accorded differ- cluding that of just compensation In
ent and less favorable treatment under the these circumstances, we cannot say that the
Gellneral L.aws of Rhode Island than are classifications created by the' Lgislaturc
owners of salt water wetlands. lack all rational basis. The plaintiffs' ar-
gument is without merit.
Unless a suspect classification is The plaintiffs' final contention, is that �
created, a legislative decision to distinguish 2-1-21(b) deprives them of property with-
between two sets of persons will he upheld out just compensation in violation of U.S.
if it has any rational basis. Dandridge v. Const. amend. V, � 1 and R.I,Const, art. 1,
l'illianms, 397 1.S. 471, 90 S.Ct. 1153, 25 �� 2 and 16. They do not include the pro-
l..Fd.2d 491 (N170). In order to establish a visions of � 2-1-21(a) in their l'hallenge.
denial of equal protection in the instant As we believe the provisionsfi, g � 2-1-
case, plaintiffs must show that owners of 21(b) cannot be neaningfully';construed
fresh and salt water wetlands are similarly without an understanding of the preceding
situated and that the differences in proce- subsection, we first examine .thellfunction
dure adopted by the Coastal Wetlands Act, of � 2-1-21(a) in the context of the just
�� 2-1-13 to 2-1-17 and by the instant Act compensation issue.
lack all rational basis.

325

The final sentence of � 2-1-21(a) pro- based upon its value as a wetland, direct
vides that appeal from the denial of ap- the state, if approval were denied by the
proval to alter the character of a wetland director, or the city or town, if approval
may be taken to the Superior Court.3 The were denied by such city or town, or
formal denial of such approval will in all both, if they concurred in such disap-
cases come from the Department of Natu- proval, to pay to the landowner the fair
ral Resources, a body whose actions are market value of the wetland; provide(d,
governed by the provisions of the Adminis- however, that if the state, or the city or
trative Procedures Act, G.L.1956 (1969 town, or both, where both are ordered to
Reenactment) �� 42-35-1 to 42-35-18. pay, shall decline such acquisition, the
Section 42-35-15 provides for judicial re- landowner may proceed to alte' the wet-
view of contested cases. It specifically land as initially requested. Alny amount
gives an aggrieved party the right to raise paid by the state hereunder shafi be paid
all legal issues concerning the validity of from any funds in the treasutfy not oth-
the agency decision, including all relevant erwise appropriated. If the director of
constitutional issues. Section 42-35-' natural resources alone denied approval
15(g)(l). under subsection (a) then the state shall
make payment. If the city' or town
alone denied approval under subsection
power of eminent domain on the director, (a) then the city or town shall make
his decision to withhold approval of a pro-
posed alteration may be attacked on appeal payment. If both the state and the city
as a denial of any beneficial use of the or town denied approval then payment
landowner's property and a violation of the shall be shared equally by the state and
constitutional right not to have that prop- the city or town."
erty taken without just compensation. U.
S.Const. amend. V; R.I.Const. art. I, � 16.
subsection is admittedly ambiguous, this
If this contention were upheld, presumably subsection is admittedly ambiguous, this
court must construe a duly enacted statute
the action of the director would be null to be constitutional if such constructiol is
and void, and the landowner, as a matter reasonably possible. Giving this admoni-
of constitutional right, would be permitted tion due weight, we note that the subsec-
to proceed with his project. Thus the Act, tion speaks in terms of "electing"' to peti-
by incorporating the provisions of the Ad- tion to the Superior Court. This language
ministrative Procedures Act, gives any suggests that the Legislature viewed � 2-
landowner the opportunity to vindicate his 1-21(b) as an alternative to the review
constitutional rights in a judicial forum. procedure provided in � 2-1-21(a), a vlon-
By reserving to the courts the question of essential addition to the statute supl)le-
whether the Act as applied may be uncon- menting, but in no way limitingl, the land-
stitutional, � 2-1-21(a) is clearly constitu- owner's right, already secured by the prc-
tional on its face. vious subsection, to raise all relevant consti-
The plaintiffs, however, base their argu- tutional claims.
ments on � 2-1-21(b). This subsection An examination of the relative kinds of
reads as follows: review offered by the two subsections rein-
"Whenever a landowner shall be de- forces this construction they' are in no
nied approval to alter a wetland by the sense duplicitous. Section: 42-35-15(g)
director, or by the city or town within states specifically that the reviewing court
whose borders the wetland lies under shall not substitute its judgment'for that of
subsection (a), the landowner may elect the agency on questions of fact. ':To over-
to have the state, or such city or town, turn a decision on factual grounds, a land-
acquire the land involved by petitioning owner must establish that it is "clearly er-
to the superior court. If such court roneous in view of the reliable, probative,
shall determine that the proposed altera- and substantial evidence ori the whole rec-
tion would not essentially change the ord." Section 42-35-15(g)(5).-'
natural character of the land, would not
be unsuited to the land in the natural Earlier in this opinion we noted that the
state, and would not injure the rights of director would disapprove a landowner's
others, the court shall, upon determining application when he concluded. that the
the fair market value of the wetland, proposed alteration would thwart the legis-
lative mandate to preserve and protect wet-
lands in order that they continue to fulfill

326

the functions specified in � 2-1-18. We
also noted that this determination inevita- and concurring in part.
bly invokes difficult factual questions of a
scientific nature. With the scope of re- I disagree with that portion of the ma-
view provided by � 42-35-15, the landown- jority opinion which deals with the author-
er faces a difficult task if he should wish ity granted the legislative bodies of our
to contest the findings made below as to various cities and towns, and I reluctantly
the ecological impact of his proposed proj- concur with their view as to the thrust of
ect. If, however, a landowner elects to pe- the proviso which requires the denying au-
tition under subsection 2-1-21(b), the Su- thority to purchase the subject property
perior Court must make an independent de- but restricts the amount it nmust pay t. the
termination of whether "* * * the pro- value of the property "as a wetlanl."
posed alteration would not essentially
I cannot share the view that it is highly
change the natural character of the land, dubiou! if not absurd, to read the perti-
would not be unsuited to the land in the
nent provisions of � 2-1-21 as givilng a
natural state, arid would not injure the
natural state, ai d wo uld not injure t e city or town council the absolute and un-
righ'ts of others * * *." (Emphasis qualified right to give a "thumbs down" on
added.) In effect these determinations
constitute a de novo review of the essential Resources on a proposal
tor of Natural Resources on aI proposal
questions of fact and law in the case. which seeks to alter a wetland. My dis-
Should the court decide that the landowner
agreement with my brothers is base d ponp
is correct in his contention that the pro- the language of the statute and can
posed use will not essentially alter the nat- natiol of the travel of the and al egisla-
ural character of the land, and by implica- tion after it first made its appearance on
tion that the director was incorrect in de- the legislativescete during he (;cncra
nying his approval, then the landowner Assembly's 1971 session. t
must either be compensated or he must be * ,
allowed to proceed with his project. This While we are hound to construe a stat-
compensation provision does not replace ute so that it is constitutionral, the usual
the judicial determination on appeal under canons of statutory construction are not
� 2-1-21(a) of what, in the event that the applicable where the statute i:s clear and
director was correct in his disapproval, unambliguous. In such instainces, the stat-
would constitute just compensation for tak- ute declares itself, and its terms cannot be
ing. Rather, it functions as a gratuitous interpreted or extended; they nmst he ap-
offer by the state to purchase a landown- plied literally. Andrleoz.i v. D'BAntuono,
er's property in some cases where the 113 R.I. 155, 158, 319 A.2d 16, 18 (1974);
director is found to have overestimated the Smith v. Raparot, 1(11 R.I, 565, 567, 225
impact of a proposed alteration. A.2d 666, 667 (1967).

We anticipate that � 2-1-21(a) The original Wetlands Act was intro-
will be the usual avenue of appeal and that duced on March 4, 1971.1 The bill was
the provisions of � 2-1-21(b) will be in- nlumbered "S-434" and was referred to the
voked only where an appeal under � 2-1- Senate Judiciary Committee. The bill
21(a) proves unavailing or where the land- passed the Senate on AprilI15,2 At that
owner allows the appeals period to run, time it contained provisions several of
thereby foregoing his opportunity to raise which can still be found in �� 2-1-21 and
issues of a constitutional dimension. If 2-1-22. These sections setl.farth the pro-
then, � 2-1-21(b) is so construed only as a cedural and substantive rules which would
limited supplementary remedy giving those govern the ultimate fate of one who might
landowners who have no interest in suh- wish to change any property which fell
stantially altering the character of their within the statutory "definition of what
wetlands an opportunity to gain de novo constituted a "fresh water wetland."
review of certain essential issues of fact When 5A34 passed the .Seiate, the sole
and law, the Act does not on its face de- and exclusive power to grantor deny the
prive any person of property without just application was vested in :the director,
compensation. whose guide would be the public interest.
For the reasons stated, the plaintiffs' ap-
peal is denied and dismissed, and the judg-
ment appealed from is affirmed.

327

The bill required the director, once he had mandating a denial by the director of an
received an alteration application, to notify application if its grant would not be in the
the abutting landowners as well as a vari- public interest and the stipulation provid-
ety of municipal agencies, including the ing for an appeal to the Superior Court
council, the conservation commission, and from such a denial. The insertion specifi-
the planning and zoning boards, of the ap- cally directed the withholding of a direc-
plication's pendency. The director was tor's approval unless the;'project had been
also authorized to send a similar notice to approved by the governing body of the Imu-
such persons or agencies whose names are nicipality within which the wetland was lo.
on a departmental mailing list because they cated. The Ilouse passed the comlnittee's
have informed the director of their desire amended version of S-434 on July 9, )971,6
to be notified of the filing of all alteration and 4 days later, on 'July' 13, the Senate
applications. If any objection was receiv- concurred in its passage.7 Thereafter, the
ed within 45 days of the mailing of the no- Governor signed the bill, and S-434 be-
tice from any of those notified, the bill came law. "'
mandated a public hearing. I believe, from the explicit language
S-434 was transmitted to the House of found in � 2-1-21 and the' deletions and
Representatives on April 16 and referred additions made in the House of Represent-
to the Finance Committee.3 On June 30 atives, that the blank check given the local
the committee reported the bill on to the legislatures regarding proposed changes in
floor with recommendation that the House the local wetlands was purposeful. The
concur in its passage. The report was re- General Assembly, in its effoirt to preserve
ceived and the bill placed on the calendar the wetlands' "integrity and purity," in-
for July 1.4 On that day, however, the bill tended that the final say on any alteration
was amended on the floor in two respects-5 to a local wetland would be vested with the
The proposed � 2-1-21 was modified so council no matter what occurred on the
that the Water Resources Board was not state level and that the munikipal officers
required to seek the director's approval, would not be bound to the public-interest
and the proposed � 2-1-22 was revamped standard which is to be the director's
so that "* * * any person affecting in- guideliine. ;'P
land Wetlands or waters as described with-/
in � 2-1-21 of this chapter" would file Perhaps the General Assqmhly, when
with the town council or the mayor of the givirgthis unrestricted power to the local
municipality in which the wetlands were legislatures, believed that their actions
situated as well as the state Department of were justified by a principle expressed by
Natural Resources a written notice of his some courts: the Legislature, in delegating
intention, together with the plans describ- police power to the municipalities, need not
intention, together with the plans describ- fix guides and standards fo'i ts exercise,
ing the proposed activity. The amendment fix guides and standards f its exercise.
LaRoque v. Board of Countyi Commalission-
retained the requirement of notice to the
abutting owners and municipal agencies ers, 233 Md. 329, 196 A.2d, 902 (1964).
Ibut specified that the requisite notice Assuming the validity of such a proposi-
would be given and the public hearing til, its applicability depends upon the
would be condllucted by the local authori- function being delegated. If it is a legisla-
ties. The atnendment provided that the tive function, it may pass muster. If it is
council or the mayor could recommend judicial, it is a nullity.
such protective measures as may protect The test for distinguishing legislative
the public interest and transmit their rec- and judicial action was made by Mr. Jus-
ommendations to the director. Thereafter, tice Holmes, speaking for the Court, in
the director had 6 weeks in which to make Prentis v. Atlantic Coast LiWe:.Co,, 211 U.
his decision. S. 210, 29 S.Ct. 67, 53 LIEd. '15] (1918).
The amended bill was then recommitted There he said:
to the Finance Committee where the July 1 "A judicial inquiry investigttes, declares
amendments were deleted and the original and enforces liabilities as they stand in
language proposed for �� 2-1-21 and 2-1- present or past facts and unler laws sup-
22 was restored with one significant addi- posed already to exist. Th't is its pur-
tion. The committee amended � 2-1-21 by pose and end. Legisltion on the other
making an insertion between the provision hand looks to the future 'and changes
existing conditions by making a new
rule to be applied thereafter to all or
some part of those subject to its power."
328

In applying this test, it has been recog- ask the director to determine whether tle
nizetl that it is the nature of the act per-
proposed alteration came within the anllrit
formed rather than the name of the offi-
cer, board, or agency doing the act which
received such a request, he or his duly .tu-~
determines whether it is judicial or legisla-
.i. . --- thorized agent was required to make anl
tHere the power vested in the city on-site inspection of the project area. If it
and town counecils is unqlestionally judi- appeared that the proposal contemplated a
cial in nature. It follows that the proper "significant alteration" to the wetland, an
exercise of this power is conditioned upon alteration appiication would 'have to be
minimulll requisites of due process being filed and the necessary notices'of. its pen-
satisfied. Restriction on one's property is dency given. i
valid only if the restriction is reasonably It is obvious that � 2-1-7l(bj is'a nlali-
related to the public health, safety, or wel- festation of the General Assembly's con-
fare. '(J7I8Town of (Nlrcestcr T. Oli'Ots cern for a property owner whose interests
,llobil' Hlme Cour (rt, Inlc., Ill R.I. 12(1, 124, must give way to the public interest in the
3(11 A\.2d 465, 468 (1973). Here the Wet- preservation of the environment. Ilow-
lands Act contains no standard which re- ever, the language used by the Legislature
qllires that there be a reasonable relation- is by no means precise or clear Apparent
shil) Ibetteen the coulncil's denial and the ly, the Legislature has afforded the land-
alpl)licant's proposed( use of his land. Fur- owner who does not want to continue his
thelrmlorc, dute proccss demanads that before fight with those in the State House or the
the council can deny an application, the ap- city and town halls a chance' t obtain
pllicant is entitled to notice and an opportu- some compensation. If he wishes, the
nity to be heard. Carroll v. Zoning Board property owner can go to- the Superior
of evCiceL', 1()4 R.l. 676, 248 A.2d 321 Court and seek the alternative relief delin-
(1968). Consequently, the unfettered veto eated in � 21(b). If he takes this route
power given the city and town councils is however, he must satisfy the thiee condi-
unquestionaldlly tlconstititiolal. tions set forth in this subsection. If he
Turning to � 2-1-21(h), my agreement does, he will ,have convinced th}e trial jus-
with the majority on the thrust of this sec- tice that the denial of his application ac-
tion is clouded with concern. Section 2- tually amounted to an invalid exercise of
1-21(b) conmes about as the result of all ef- the police power. However, by invoking �
fort, begun il 1973', to make certain 21(b), the property owner has waived his
chal;ges in the original Wetlands Act. right to receive just compensation and will
The 1973 legislation, known as 73-I1 6267, settle for a sum that represent: the value
received rather expeditious treatment in of his wetland "as a wetland.'! ,
the HIouse of Representatives after being While I agree with the majority that �
introduced there on April 5.8 It did not 21(b) is a gratuitous offer, Siean envision
reach the Senate until the last legislative circumstances where a landowneI who eua-
day of its 1973. session. When the Senate ploys its provisions and gets paid for his
reached final adjournlment on May 4, 73-11 wetland may discover that thr has been a
6267 was placed on the president's desk9 substantial diminution in the value of his
where it remained until the Senate re- property which adjoins the wetland.
turned for the 1')74 session. On January While the public interest it), preserving
23, 1974,10 the fourteenth legislative (lay of flood plains and habitat for wildlife is
the session, the hill was recommitted to the commendable, it mnust not overshadow an
Joint Committee'on lnllvironment. awareness of the danger that the exercise
of the police power can result in the "tak-
One of the proposed changes, awaiting ing" of one's real estate just. al if a con-
Senate vote, would have amended . 2-1-21 demnation plat had been filed.12 If such
so that a Mi-unicipal legislature would have an event occurs, the landowner, should re-
to register its disaIproval oil ant alteration ceive just compensation, whlhichlmay not
plan within 45 days after the director had necessarily he the wetland valueio pecified
mailed notice of its pendency before him. 'ill � 21(b). If, in enacting � !:(b), the
This change was prompted by a recogni- Legislature desired the state or nutnicipali.
tion of the hardship that would be suffered ty to pay just cqmpensation when either
by a landowner who had to wait until the disapproves an alteration plan,.I would re-
council decided when and what it was spectfully suggest that it give tMiis subsec-
going to do. Another change amended � tion a second look.
2-1-22 by empowering a property owner to
329

GOLDEN v. PLANNING BOARD OF TCWN CF RANAPO
30 N.Y.2d 359., 334~ N.Y.8.2d1 138,1 285 N.E.2d 291 (1972)
Both, ca es arise out of the 1969 amend- ty owner and Eldorado has never sought
,nients to the Town of Ramapo's Zoning preliminarIy approval off' siudivision plat.
Ordinance. In Golden-, petitioners, the Petitioner Golden and'* plaintiff Rhodes
owner of record and contract vendee, by have both' sought plat "approval and have
way of. a proceeding Pursuant to CPLR ar- been deniled the 'same, i~r failure to apply
tidt 78' sought an order reviewing and an- frapcilemt.'hti" h thc builders
nulling, a4 decisiotn and determination of the are obviously not aggrieved by tile recent-
Plnming" Board of the Town of Ramapo ;amendments, landowners' prior to gaining
vhi'ch denied their application for prelimi- approval' for subdivision., of necessity,
naiy' approval of a' residential subdivision would be required to apply. for a special
plat because of an admitted failure to se- permit, which, absent c~eriain enumerated
cure a special permit as required7by section
46-13.1 of the Town Zoning ordnance.',pro-iprvmnswudlaiayledni,
where ~~The pre6scrilption is mandatory and, were
hibitng sudiviion aprovl excpt 'we:.to conclude that the standards estab-
the residential developer has �ecureld,' prior , lihd rtepri's sunewr n
to theappliction f~- pla approal, aconstitutional, quite unlike the situation ob-
cial permit or a variance pursuant to *sec~ aigi l ar.o4v ono
oteo F of the ordinance,, Speial ,Terri tinn n Old'Farmle thev Towdnanof
sustained the. amendments anda athe odac
summary judgment. On appeal, 'the Apel- 1itself F'could admit of ii'onsittinal
late Dvisio eleced, since all -necessary 'perrnissible cosrutoi so -as to recluiv.
parties were before the court, to, treat the initial administrative ,relief- to determine.
proceeding as an action~' fr 'dicaatr whether' injury has occt~rrej
judgment and reversed, 'The attack by the subdividing land-
The plaintiffis in Rockland County .4sidd- owner is directed against tfie ordinance in
eirs Association, on the otther, hanid, sougn, iti entirety, and~ -h hus f the petition
in an action for declaratory judgrn~nt, to and complaint, r~spectiliely;.io- that the or-
set aside the ordinance as tohiitialdiii~ice" of itself -oPer Ctrs'~~ destroy the
anid commenced the present action - after ~ Alui" ind marketabiliky f-A -the subject
the Planning Board had denied:.plaintiff peme&for, residential 'use -and thus con-
Mildred Rhodes preliminary plat.. approval s..titutes a present invasiorn 'i9f the property
for her. parcel of property because: oi rgt of th-am~~np landholders
conceded, failure on her part to, obtain a e Iedhamit1s'isidit nds
special ~permit as required. under,-the chal- 4lI1.I -..14,;
Wufficient to raise a jug cigblc issue as to
lenged ordinance. The remainiiig' plain.
tiffs, R'Ockland County Builders Assqpja- teviyo h ujc r~aL
tion, a membership composed ~~~~~~Experiencing, the' pr~#~ of an in-
corpofation ~~~crease in population ai h nilr rb
of builders engaged in the"purehaseQf land lmo rvdn uita aiac n
and construction of residences of, .all types semoprovicesn' theTo n ofaiapo s early
through the Town, as well as the.J~,dorado a 94 aeapicto o rn n
Developing Corporation, Possessed:0sr e eto 0 of 'tesigAtof~
12 acres situate within fte Town . apper scin8io th 4 igAto
appar- ~~~1964 (78 UJ.S.Stat. 769)': to evelop a mas-
ently lhave. never made application. for ap- trpa.Tepa' ~p~toiicu~
proval of a plat and have nei~e?'s'oixght ~a i&icxtngld
special permit, as a pequst"i . sc a orvlm suyo h 'xsigln
proval. Special Term, concluding~:that jbeusspblcfiiter'nrain nd-
try and, commerce, housing 'needs and pro-
constitutional attack was premiature be- ~ Jce population trends.
cause of the asserted failure'.to'exliaus a etd The master-planii"as followed by
ministrative remedies (cf. Old Farmi 1~644 the adoption of a comp ,th~hive Zoning or-
v.Town of.- New Castle, 26 NY."N'2d'462,- 31, dinance. Additional sevvag~ district and
N.Y.S.2d i,5OO, 259 N.E.~d'9O~~dne drainage studies were iundertaken which
their' motion for summary, jvdgmn ''kh culminated in the adoptjl~ of a capital
granted' defendants' cross'moti6i 'to 4is,- bugt prvdn frf~4velopment of
miss. On appeal, the Appellate6 Dvisionj,'37- the improvements specified in the master
A.D.20 783,'324 N.Y.S.2d 190, held~fhatithe plan within the next ~six years, Pursuant
parties 'lw-6e presently aggrieve&d.'d rely- to section 271 of the Towli J.aw, authoriz-
ingan ~4den, rversed and grnt~d 'plahi-Ing comprehensive planning', and as a sup-
tiffs' motion for summary ju~~gn~ent~ plenment to the capital b~d~get, theTw
Afl~ong he comparning~ artiesBoard adopted a capital' Ajogram which
Rocklatid 'ounty Builers i~ not~ pi.~per-provides for the location and sequence of

330

additional capital improvements for the 12 availability to the proposed plat of certain
years following the life of the capital municipal improvements;, the avowed pur-
budget. The two plans, covering a period pose of the amendments being to phase
of 18 years, tletail the capital improve- residential development to the Town's abil-
ments projected for maximum development ity to provide the above facilities or setrv-
and conform to the specifications set forth ices.
in the 'master plan, the official map and -Certain savings and 'emedial provisions
drainage plan. are designed to relieve ot potentially utn-
reasonable. restrictions.:' Thus, the board
Based upon these criteria, the Town sub-
,Basfd upnteeci~imay issue special permits 'vesting a present
sequently adopted the subject amendments
right to proceed with residential develop-
for the alleged purpose of eliminating
premature subdivision and urban sprawl. ments the r ed point minimm, ut in
meets the required point minimum, but in
Residential development is to proceed ac- vent later tha the final year of the
n' event later tha~ the-final year of the
cording to the provision of adequate mus
18-year capital plan. The approved special
nicipal facilities and services, with the as- uspermit is fully assignable, and improve-
surance that any concomitant restraint merts s duled for conleton within one
ments scheduled for conaplotion within one
upon property use is to be of a "tempo- year from the date of ah application are to
rary" nature and that other private uses, be credited as thout eiig on the date
including the construction of individual be credited as though exising on the date
of the application. ,A prospective develop-
housing, are authorized. er may advance the date of subdivision ap-
The amendmernts did not rezone or re- proval by agreeing to provide those im-
classify any land into different residential provements which will bring the proposed
or use districts,2 but, for the purposes plat within the number of dcvlopment
of implementing the proposals appearing, points required by th.e amendmnnts And
in the' comprehensive plan, consist, in applications are authorized to the "Devel-
the main, of additions to the definitional opment Easement Acquisition Commission
for a reduction of the assessed valuation.
sections of the ordinance, section 46-3, and for a reduction of the assessed valuation.
the adoption of a new class of "Special Finally, upon application to the Town
Permit Uses", designated "Residential Dc- Board, the development point requirements
velopment Use." "Residential Develop- may be varied should the board determine
that such a variance or modification is
ment Use" is defined as "The erection or
construction of dwellings or any vacant consistent with the on-going development
plots, lots or parcels of land" (� 46-3, as plan.
amd.); and, any person who acts so as to The undispuited effect'of these intcgrat-
come within that definition, "shall be ed efforts in land use planning and devel-
deemed to be engaged in residential devel- opment'is to provide an over-all program
opment which shall be a separate use clas- of orderly growth and'ade4uatc facilities
sification under this ordinance and subject through a sequential developmtnt policy
to the requirement of obtaining a special commensuratewith progressing availability
permit' from the Towni Board" and capacity of public' facilities. While its
The standards for the issuance of, special goals ale clear and its purposes undisputa-
permits are framed in terms of the a'vaila- bly. laudatory,, serious' questions are raised
bility to the proposedi subdivision' plat of as-to the manner in which these ends are
five essential facilities'or services: specifi- to b effected; not the least of which re-
cally (1) public sanitary sewers or-ap- lates to their legal viabiiy tnder present
proved substitutes; (2) drainage facilities; particularly
zoning enabling legisla'ion, particularly
(3) improved public parks or recreation fa- sections 261 and 263 of the Town Law
cilities, including public schools;" (4) State, The owners the subject prem'cs argue,
'The owners of the subject prem:"es argue,
county' or town roads-major, secondary or and the Appellate Division has sustained
collector; and, (5) firehouses. No special the proposition,t
the proposition,'that"the primary purpose
permit shall issue unless the proposed resi- of the amending ordinance is to control
dential development has accumulated 15 de- or regulate population growth within the
velopment points, to be computed on a slid- Town and as such is not ;ithiin the autho-
ing scale of values assigned to the speci- rized objectives of the zonrii enabling leg.
fied improvements under the statute. Sub- islation. We disagree. o,'e'
division is thus a function of immediate L i'--'-

331

In enacting the challenged amendments, Even so, considering the activities
the Town Board has sought to control sub- enumerated by section 261 6f the Town
division in all residential districts, pending Law, and relating those poaers to the au-
the provision (public or private) at some torized purposes detailed' in section 263,
future date of various services and facili- the challenged amendments are proper zon-
ties. A reading of the relevant statutory ing techniques, exercised for legitimate
provisions reveals that, there is no specific zoning purposes. The power to restrict
authorization for the "sequential" and and regulate' conferred under section 261
"timing" controls adopted here. That, of includes within its grant;by way of neces-
course, cannot be said to end the matter, sary implication, the authority to direct the
for the additional inquiry remains as to growth of population for the purposes indi-
whether the challenged amendments- find cated, within the confines of the township.
their basis within the perimeters of the de- It is the matrix of landluse restrictions,
vices authorized and purposes sanctioned common to each of he enumerated powers
under current enabling legislation. Our
and sanctioned goals, a' necessary concomi-
concern is, as it should be, with the effects
of the statutory scheme taken as a whole tant to the mnipalite cognized au-
and its role in the propagation of a viable thority to determine the lilies along which
policy of land use and planning. local development shall proceed, though it
may divert it from its natural course (Eu-
Towns, cities and villages lack clid v. Ambler Co., 272 U.S. 365, 389-390,
the power to enact and enforce zoning or '- .Of course, zoning- historically has as-
other land use regulations (Matter of Bar- sumed the development of individual plats
ker v. Switzer, 209 App.Div. 151, 153, 205 and has' proven characiteistically ilelffec-
N.Y.S. 108, 109; cf. De Sena v, Gulde, 24 tivi in treating with the iroblems attcnd-
A.D.2d 165, 171, 265 N.Y.S.2d 239, 245). ing subdivision and development of larger
The exercise of that power, to the extent parcels, involving as it invariably decs, the
that it is lawful, must be founded upon a provision of adequate public services and
legislative delegation to so proceed, and in facilities. To this end, spbdivision control
the absence of such a grant'will be held ul- (Town Law, �� 276, 277) purports to guide
tra vires and void community development i:;i the directions
That delegation, set forth outlined,,here, while at. the.same lime en-
in section 261 3 of the Town Law, is not, couraging the provision 'of dequate facili-
however, coterminous with stated police ties for 'the housing, distrijution, comfort
power objectives and has been 'consid- and convenience of local residents (Village
ered less inclusive traditionally. Hence, al- of., Lnbrook v. Cadoo, 252 N.Y. 308, 314,
though: the power to zone must be exer- 169 N.E. 394, 396). It ,rflects in essence,
cised under the aegis of the police power, a legislative judgment thgtthe developlment
indeed must inevitably find justification of unimproved areas,,le'b accompanied by
for its' exercise in some aspect of the same, provision of essential facilities And
the recital of police power purposes in the though it may not, in a defigitional or con-
grant, attests more to the drafters' at- ceptylal s'ense be identiei'ed;ith the power
tempts to, specify- a valid constitutional :to zone,,it s designed to co plement other
predicate than to detail authorized zoning land-use- restrictions, wilch;i taken together,
purposes,4 The latter, "legitimate zoning seek to implement a brTex; tompreheesive
purposes," are incorporated in accompany- plan for community ,:;SvOe~1opment
ing Section 263 and are designed to se- 'It is argued, nevertheless;1 ihat the timing
cure safety from various calamities, to controls currently in ig'uirare not legisla-
avoi4 'undue concentration of population tively authorized sinc their effect is to
and to 'facilitate "adequate provision of prohibit subdivision absenit precedent or
transportation, water, sewerage, schools, concurrent action of thieown;' and hence
parks. and other public requirements" constitutes an tnauthoti'edW'bhlanket inter-
(Town. Law, � 263). In the end, zoning diction against subdivis'ic',,
properly, effects, and only in the manner
prescribed, those purposes detailed under
sectiqn 263 of the Town Law. It may not
be ,involecd .to further the general police
poweS 'of a municipality

332

It is, indeed, true that the Planning Recognition of communal and regional
Board is not in an absolute sense statutori- interdependence, in turn; has resulted in
ly authorized to denyw the right to .Subdi- proposals for schemes of regional and
vide. That is not, however, what is sought State-wide planning, in the hope that deci-
to be accomplished here. -rhe Planning sions would then correspond roughly to
Board has the right to refuse approval of their level of impact Yet,
subdivision' plats in the absence� of those as salutary as such proposals may be,
theI. power to zone ui current law is
improvements specified in section 277, and te power to zone unic e current law is
the fact that it is the Town and not the ed in al municipalties, ad we are
subdividing owner or latnd developer who constrained to resolve the issues according-
subdividing owner or land developer who
is required to make those improvements be- ly. What does become rnore apparent in
fore the' plat will be approved cannot be treating with the problem, !wever, is that
said to transform the scheme into an abso- though the issues are famed in terms of
lute prohibition' any more than it would be thedeveloper's due progesn rights, those
so where it was the developer who refused rights cannot, realisticty~ speaking, le
to provide She facilities required for plat vied separately and' ,Fart frol the
approval. Denial of subdivision plat rights of 'tubers "'in sear: of ;a [nore]
.como~rta~ble place to live.
approval, invariably amounts to a. pro- 'Mfortebis' place to fiie
hibition against subdivision, albeit a condi- scheme which, apart from it; pro
peet in a scheme which, apart from its pro-
tional . ione' .; and to sayfe-u
that the' Planning Board lacks the authori- upon
the': :ei~):~obility of'a ,pe0Plec until some.
ty to deny subdivision rights is to mistake the. obily of ple until some-.
tim~e in tle futr wur hen projected facilities
the nature of our inquiry which is essen-
are -availaxble to meet increased demands.
tially whether development may be condi-
Although zoning must include schemes de-
tioned pending the provision by the munici- '' I s
sigleae to Nallow municip~tkltiis to more cf-
pality of specified services and facilities.ties to more e-
feciel'y', contend writh,:"the increased de-
Whether it is the municipality or the de- mafecdofevolving and wi:t increased de-
veloper who is to provide the improve- e volvin g and rowig ommi
ties, under its guise, townships have beentl
ments, the objective is the same-to pro-, , . .:
vide adequate facilities, off-site and on- wont to try their hand at an array of ex-
site;. and in either case suldivision rights clusionary devices in thd hope of avoiding
are conditioned, not denied. 'the very burden which igrowth must inevi-
tably bring, Though the
'Undoubtedly, current zoning enabling conflict engendered by'siuh tactics is cer-
legislation is burdened by the largely anti- tainly real, and its implications vast, accu-
quated plotion which deigns that the regula- mulated evidence, scientific and social,
tion ,of .land use and development is points circumspectly atlthe hazards of tn-
uniquely a function of local government- dfrected growth and thelnAive, somewhat
that the public interest of the State is ex- nostalgic imperative thli;!egalitarianism is
hausted, once its political subdivisions have a functiori of' growth.
been delegated the authority to zone While Of course, these problems carrot be
such jurisdictional allocations may well solved by Ramapo or any single municipal-
have been consistent with formerly prevail- ity, but depend upon: the accommodation of
ing conditions and assumptions, questions widely disparate interests.:for their ultimate
tave commonly resolution. T'o that end, State-wide or re-
of broader public interest have commonly
been boaded publgional control of planning would insure
been ignored
bExperience, over the last quarter centu- that interests broader than that of the mu-
Experience,, over the last quarter centu-
ry, however, with greater technological in- nicipality underlie various land use poli.
dles. Nevertheless, that':should not lie the
tegration and drastic shifts in population ci Nevertheless, that'ot lee the
distribution has pointed up serious defects only context in which growth aevices such
and community autonomy in land use con- as' these, aimed at population assimilation,
trols has come under increasing attack bylusion, be susi ; esp
legal commentators,*and students of urban where, as here, we ould have no alterna-
problem alike, because of its pronunced tive but to strike the Pro.vision down in the
pobinsulis and its correlative role in pro- wistful hope that the efforts of the State
insularistn and its correlative role in pro-
Office of Planning '66oodimLtion and the
ducing distortions in metropolitan growth merican aw Instit ll soon enr
patterns, and perhaps more importantly, in
crippling efforts toward regional and fruit
State-wide problem solving, be it pollution,
decent housing, or public transportation,

333

Hence, unless we are to ignore the ordinance. The Town'-argues that various
plain meaning of the statutory delegation, public facilities are presently being con-
this much is clear: phased growth is well structed but that for want of time and
within the amllit of existing enabling legis- money it has been unable to provide such
lation. And, of course, it is no answer to services and facilities at a pace commensu-
point to emergent problems to buttress the rate with increased 'public lweed. It is
conclusion that such innovative schemes urged that although the zoning po'ver in-
are bey'ond the perimeters of statutory au- cludes reasonable restrictiops upon the pri-
thorization. These considerations, admit- vate use of property, exacted in the hope
tedly real, to the extent which they are rel- of development according to well-laid
evant, 4hear solely upon the continued via- plans, calculated to advance the public wel-
hility of "localism" in land #se regulation; fare of the community in the future the
obviously, they can neither idd n6r detract subject regulations go further and seek to
'from the initial grant of authority, otlsoles- avoid the increased responsibilities and
cent though it may be. The answer which economic burdens which time and growth
,Ramapo has posed can by no means be must ultimately bring.
termed definitive; it is, however, a first It is the nature of 11l land use and de-
practical: step toward controlled growth velopment regulations to 'crcuinscrilse the
achieved without forsaking broader social course of growth withii;:ii particular town
purposesr or district and to that 6xtent such restric-
":: ' . |tions invariably inipede the forces of natu-
The evolution of more sophisti- r{l growth. '
catedt efforts to contend with the increas- Where those r ttrictions upol the
ing complexities of urban and suburbian beneficial use-and enj'int of land are
growth: has,.been met by a corresponding necessary to promote the ultimate good of
reluctance tipon the part of the judiciary to the community and are withn the bounds
substitute, its judgment as to the plan's of reason, they have been sustained.
over-all: ':effectiveness for the considered "Zoning [, however,] is a means by which a
deliberations of its progenitors. governmental body can iplri for the futuie
-it may not be used as'8 means to deny
Implicit in such a philoso- means to Ily
phy of judicial self-restraint is the growing the future ts exer- 4
awareness that matters of land use and de- cise assumes that development shall not
velopmen't are peculiarly within the exper- stop at the community's threshold, but only
tise of students of city and suburban plan- that whatever growth ther. may lie shall
ning, and 'thus well within the legislative proceed along a predetermined cours. '
prerogatives not lightly to be impeded - It is inex-
To this same end, tricably bound to the dynamics of comlmu-
we have.. afforded such regulations, the pity life and its function' i to0 guide, not to
usual presumption of validity attending the isolate or facilitate efforts at avoiding the
exercise; of the police power, and have cast ordinary incidents of growth. What segre-
the burden' of proving their invalidity upon gates. ermissiblper missible re-
the party challenging their enactment 'trictiobs, depends in the final analysis
Deference in the upon tfie purpose of the restrictions and
matter': of the regulations' over-all effec- ther impactin terms o the c i-
tivenes,', however, is not to be viewed as hand 'general public interest,
an abdication of judicial responsibility, and i . ,gie line of de-
ours irftnains the function of defining the :ligatio 'between the twdo'snAot ; constant,
metes and bounds beyond which local regai- tif:Jlpbe founds to vary'iwith prevailing
lations may not venture, regardless of their circumstances and c6fidftl6s;'
professedfy beneficent purposes. ' th, pree-minenlt protec-
The subject ordinance is said to advance tioth against their abuse;.resides in the man-
legitinrtec zoning purposes as it assures da4ry on-going planninlgind :development
that etch' new home built in the township requirement, present lier[:i,which attends
will have at least a minimum of public their, implementation andi lug
services in the categories regulated by 'the

334

What we. will not countenance, then, un- We. may assume, therefore, that the
der any guise, is community efforts at im- present amendments are the product of
munization or exclusion. But, far from foresighted planning calculated to promote
being exclusionary, the present amend- the welfare of the township. Thc Town
ments merely seek, by the implementation has imposed temporary restrictions upon
of sequential development and timed land use in residential areas while cumnlit-
growth, to provide a balanced cohesive ting itself to a program of devcloplent.
community dedicated to the efficient utili- It has utilized its coinprehensive plal to
zation of land. The restrictions conform implement its timing controls and has cou-
to the cemmunity's considered land use pol- pled with. these restrictions provisions foi
icies' as 'expressed in its comprehensive low and moderate income housing on a
plan; axnd represent a bona fide effort to large scale. Considered as a whole, it rep-
maximize populatioUi density consistent resents both in its inception and implenten-
with orderly growth. True other alterna- tation a reasonableattempt to provide for
tives; skuch as requiring off-site improve- the sequential, orderly development of land
ments as a prerequisite to subdivision, may in conjunction with the needs of the corn-
be ayailable, but the choice as how best to munity, as well as individual parcels of
proceed, in view of the difficulties attend- lald, while simultaneously obviating the
ing suCh exactions cannot be faulted. blightcd afternathiwhich the initial failure
Perhaps even more importantly, timed to provide needed facilities'so often brings.
growth, unlike tile minimum lot require-
ments recently struck down by the Penn- .4h'e proposed amendments have the ef-
sylvania Supreme Court as exclusionary, f{ct off restricting development for on-
does not impose permanent restrictions wards to 18 years. in certain areas.
upon land usc' (see National Land & Inv. Whether the subject parcels will be so re-
Co. v. EasttoWji Twp. Bd. of Adj., 419 Pa. strited for the full term is not clear, for it
504, 215 A.2d 597, supra; Concord Twp. is equailyprobable that the proposed facili-
Appeal, 439 ['a. 466, 268 A.2d 765, supra), ties' will be brought into these areas well
its obvious purpose is to prevent premature before that time. Assuming, however, that
subdivision absent essential municipal 'facil- the restricti6ns will -emandi outstanding for
ities 'and to insure continuous development the life of the programn, they still fall short
commensurate with the Town's obligation of a' Confiscation within'tthe meaning of
to provide such facilities. They seek, not thcCnstituiotj.
to freeze population at present levels but to
ma:imize growth by the efficient use of
' 1]', .An ordinanc e WVii seeks to per-
land, and in so doing testffy to this' com- manently restrict the use of property so
manently restrict th property so
munily's continuing role in population as;
silnilation. In sum, Ramapo asks not that that it may not be sed any reasonable
purpose must be recognized as a taking:
it be left alone, but only that it be allowed The only difference between the restriction
The only difference between the restriction
to prevent the kind of deterioration that
and anl outright taking ;it::such a case, is
has transformed well-ordered and thriving
that the restriction leaves the owner subject
residential communities into blighted ghet-
tos with attendant hazards to health, secu- outright confipcation whim of
outright confiscation, would:relieve him of
rity and social stability-a danger not that burden'
without substantial basis in fact. An appreiably different
situation obtains wlere the restriction con-
We only require that communities con-,
strates a temporary restriction, promising
front the challenge of population growth stittes a tep proisin
with open doors. Where in grappling with that the property may be plit to a proita-
ble use within a reasonable time. 'Ihe
that problem, the community undertakes,
hardship of holding unprod. ctiv. Ip'lo'erty
by imposing temporary restrictions upon for some time Iniht be cpens or by
development, to provide required municipal time t ensated or
thile ultimate benefit mnuritg to the individ-
services in a rational manner, courts are
rightfully reluctant to strike down such
schemes. The timing controls challenged sit ater
the landowner, might be;Compelled to chafe
here parallel recent proposals put forth by the landowner, might beomeed to chafe
ulller the temporary rcstrictilotl, withoullt
various study groups and have their gene-
the beenefit{ of such .~ompensationl, when
sis in certain of the pronouncements ofof such w
this at. that burden serves to promote the public
this and'the courts of sister States.
...... goodl.

335

We are reminded, however, that these property owners under'. the terms of the
restrictions threaten to burden individual amendments may elect to accelerate the date
parcels for as long as a full generation and of development by installinig, at their own
that such a restriction cannot, in any con- expense, the necessary public services to
text, be viewed as a temporary expedient. bring the parcel withiri the'required num-
The Town, on the other hand, contends ber of development points. '.While even the
that the landowner is not deprived of ei- best of plans may not always be realized,
ther the best use of his land or, of numer- in the absence of proof to the contrary, we
ous other appropriate uses, still permitted must assume the Town will put its best ef-
within various residential districts, includ- fort forward in implementing the physical
ing the construction of a single-family res- and fiscal timetable outlined under the
idence, and consequently, it cannot be plan. Should subsequent events prove this
deenmed confiscatory. Although no proof' assumption unwarranted, or should the
has been submitted on reduction of value; Town because of some unforeseen event
the landowners point to obvious disparity fail in its primary obligation to these land-
between the value of the property, if liniit- owners, there will be ampleopportunity to
ed in 'use by the subject amendments;,'nd undo the restrictions upon' default. For
its value for residential development pur- the present, at least, we. are constrained to
poses, and argue that the diminutio is so proceed upon the assumrptioi that the pro-
considerable that for all intents and pur- gram will be fully and'."iijly implemented
poses the land cannot presently ort in the Thus,' unlike the sittion presented in
near future be put to profitable or benefi- Arverne Bay Constr, Co. v, Thatcher, 278
cial use, without violation of the restric- N.Y. 222, 15 N.E.2d 587, spra, the present
tions. "' amendments propose restrictions of a cer-
� :iEvery restriction on the use of tain duration and 'founded, upon estimate
propegry eiitails hardships for some indi-' determined by fact.' .Prognostication on
vidual'*vOwners. Those difficulties are in- oui part id upholding thie ordinance pro-
varJiblythe product of police regulation ceeds upor the presentfly tmissible infer-
akid th[. pecuniary profits of the individual ence that within a reasoiiabie time the sub-
mustn the long run be subordinated to the ject property will be pai to' the desired use
needs 'of the community. The fact that at an appreciated value. In'the interim as-
'tlhe. rd'iitice' limits the use �of, and may sessed valuations for i'ea 'estate tax pur-
depteciatle the value of the property will poses reflect the impact of the propose
not ren'di"''it unconstitutional, however, un- 'restrictions.
less'"it (ti' be shown' that the'measure is ei- , 4
,th rnebonalle in terms' of 'necessity or 1-.initigated by the appreciated
tt~:t:.'.!/lfeilionable in terms' of .necessity or
'thIe v'i o in vau i's atobvalue and interim redui'bs in assessed
he''i-llnttion .in value is suich as, to be
value, and measurmed' o the aii'tre
tantamnomit to a confiscation ,esee, e. g., and m
Verntcon .Park Realty v. City of kiount. Ver- and magnitude of the !roieet undertaken,
Vei�~n.Pbark Realty v. City of .lIouq Ver-
non, '307 TN.Y. 493, 499, 121 'N.E.2d 517, are within the limits of
520')~. -iinution, in turn, is 'a' relative i
factor and though its magnitutde'i an indi- In sum, whej.:`,,clear that,'he
cia of a4taking, it does not of itself estab- existing physical and fln[ii' l resources of
lisht'a' confiscation. the community are i'nada'te to furnish
"Wi:ioi 'a doubt restrictions upon the the essential services and';acilities which a'
'p <'rt ia~n the present' case are substantial substantial increase in poiilation requires,
i '..'thire�sd " duration. they,;are"not, there is a rational ':- for "phased
ioweiiv'' 'absolute. The arnehdmrents con- groivth" ,and hence, 'the heallenged ordi-
;'e',i iartgdefinite term,'as the'develop- nance is not violative 6f' the Federal and
mare designed to opeate' for a State Constitutions.. Accordingly, the or-
'm'iti'th^''period of' 18 years and during der appealed from shoul4lb reversed and
fthat a'piz the Town 'is committed :t the the' actions remitted; to m. cial Term for
oll Ot nd ihstallation: of "'pital im- eifryiof a' judgment ddeTirng section 46-
' ei"sp The net result 'of 'the on- Ll. of the Town Ordinance constitutional.
. '.. e4;opmcnet provision is that irdi-
: s'.icei' may 'be'conomi'ited to a resi-
4tiai4lopment use prior to the expi-
T'tini;': te maximum period. Similarly,

336

BREITEL, Judge (dissenting). committed itself, it is said, by its capital
The limited powers of district zoning budget and capital improvement plans to
insure eventual availabilify of supporting
and subdivision regulation delegated to a insure eventual availability of supporting
uandsubdivipalitydo regatin delegathed to afacilities. But in some areas this eventual-
municipality do not include the power to ity will not be realized for 1 years To
impose a moratorium on land development.
Such onclusion is dictated by settled doc prevent undue delay, the town allows for a
crediting of points based on the scheduled
trine that a municipality has only those improvements even if the town program
powers, and especially land use powers, improvements even if the town program
pdelegated or n ecssarily implied. usepowshould not be realized as planned, because
of fiscal, economic, or political impedi-
But there is more involved in these cases ments. Because the effect of the ordi-
than the arrogation of undelegated powers. nance is to freeze an owner's use for vary-
Raised are vital constitutional issues, and, ing periods of time, lp to 18 years, the
most important, policy issues trenching on town also allows the ownier to apply for a
grave domestic problems of our time, with- reduction in tax assessments.
out the' benefit of a legislative determina-
tion which would reflect the interests of I is important to note w raically the
the entire State. The policy issues relate Rattiapo scheme differs those used
to needed housing, planned land develop- and adopted under existisg enabling acts.
ment under government control, and the The zoning acts, starting from 50 years
exclusion in effect or by motive, of ago, baed" on national 'iodels, provided
walled-in urban populations of the middle simply for district zoning to control popu-
class and the poor. The issues are raised lationdensity and some planning to protect
by a town ordinance, which, as one of the preferred uses of. land, su as single-fami-
Appellate Division Justices noted below, ly dwellings, from. othi scs considered
reflect a parochial stance without regard to le1s, deSirable or even iaiful to residen-
tial living or environmentO balance. Since
its impact on.the region or the State, espe-
ciallyj Al,~ it become a valid rmiodel for many the beginning, in this State and elsewhere,
othe'* wtis similarly situated. by amendment to the enibling acts by the
.: ',�" Legislature, provision has' been made for
i Bse tile issues are so important they subdivision planning and, in some in-
m'usti'�ftated in this court; although the stances, planned unit ivlpment, to prc-
opinions in the Appellate Division cover vent lrg-scal develop from dumping
* every issue involved and do' so without ne- h es hoesale in r areas without
glecting any of the legal, economic, or so- prTivate and, to some t public facili-
cial considerations relevant. A ireading of ties essential to the useiy the homes. In
them is desirable and what is said now will more recent years smina World War II,
assume that what was said once, and said the need for a much enarged kind of land
well, need not be repeated in detail. . planning has become critic. The evils of
uncontrolled urban sprawl on the one hand,
The Town of Ramapo, following an in- and the'suburban and cxurban pressure to
tensive study by highly-competent experts, exclude urban population .on the other
amended its zoning ordinance by adding to hand, have created a mnastiye con flict, with
it section 46-13.1, a section with' extensive social. and economnic implications of the
scope and detailed provisions.' It broadly gravest character. ThrQughout the nation
defines a developer as any landowner who the conlii't has risen or tIreatened and so-
proposes to erect and sell a dwelling or 'utidns are being sought ir'.careful, inten-
dwellings for residential use.*' Regardless . ive examination of the problelw affecting
of the district zone, any proposed develop- 'thope within and those "without the locali-
ment, as so broadly' definied, is 'forbidden iles to te.regi. ated,- -"
unless a special permit is obtained. Perm'its '
will be granted only if the land' qualifies The Pi'esident's Nationl.Commission on
for enough assigned points under 'some 'Urbaa. Problemis has 'tfifid';elevant recom-
five categories of available municipal facil- mnendations, th'e'Amer'ican'Law institute is
ities, 'amely, sewerage, drainage, park-rec- ngaged in' drafting a'"monel land develop-
reation-public school facilities, roads, and ment'code, and, in this' State, the Office of
firehouses. The purpose is to prohibit de- Plarlning Coordinatio' is..working on a
velopment until an acceptable level of'sup- plaining code. The eoon9li'ct has surfaced
porting facilities exists. The town has
337

in other States in efforts by municipalities tures and land for trade, Iindustry, resi-
to cut 'thitr 'own swaths in solving their dence or other purposes ;"'. This is a typi-
difficultie's, and, in every instance uncov- call district zoning provision. It grants
ered, the courts have struck down the ef- power to define permissible physical char-
forts' as unconstitutional or as invalid un- acteristics of land and structure; and says
der enabling acts much like those in this nothing about exercising .control in time.
State, Generally, The town would stretch the reference to
there is the view that the conflict requires "density of population" to. give the town
solution at a regional or State level, usual- the powers it purports to exercise by the
ly with local administration, and not by ordinance. Section 263,- defining the pur-
compounding the conflict with idiosyncrat- poses of district zoning, by any standard of
ic municipal action. statutory construction provides no help.
The Ramapo ordinance flies in the face of The section reads: "Such regulations shall
and would frustrate these well-directed ef- be made in accordance with a comprehen-
forts. sive plan and designed to lessen congestion
in the streets, to secure Safity from fire,
Decisive of the present appeals, however, floido panei and other dangers; to promote
is the absence in the town of legislative health and genieral welfati' to provide ad-
authorization to postpone growth, let aloneand air; to
equate'light"'and air; to pie'Vent the over-
to establish unilaterally phased population cr6wding of land; to av6idirunldue concen-
levels, through the expedient of barring traticn of pop'ulation; to .facilitate the ade-
residential development for scheduled peri- quate .provision of transp6rtation, water,
ods of up to 18 years.. It has always been sewerage, ' schoois, parks aid' othcr public
the rule that a municipality has only those requirements. Such regil.ations shall be
land use powers delegated or necessarily mad'' ith'reasonable cdei-ation among
implied (1 Anderson, American! Law ofs to theater of the dis-
Zoning, � 3.10). Existing enabling legisla- triCt and its pecular suiti.iy for particu-
tion does not grant the power upon which . ar uses, rid with a viei': cnserving the
the Ramapo ordinance rests. And for poli- value � f buildings asid'";: uraging the
cy reasons, one should not strain the read- most appropriate use o'6Aai'i' throughout
ing of the enabling acts, even if straining such municipality." It does not broaden
would avail, to distort them, beyond any powers granted. Instead it 'is intended to
meaning ever attributed to them, except by be restrictive in two ways:: :'irst, by mak-
the ingenious draftsmen of the Ramapo or- ing certain that zonin i'regulations con-
dinance, ' form to a master plan ' and, second, by re-
The enabling acts for the several classes
of municipalities in the State are substan- poses .. In short, district zoifng is permit.
tially alike. They followed the model acts ted if, and only if, it is prsuant to a coin-
drafted by the U. S. Department of Coin- prehensive plan and it serves the purposes
merce in;the 1920's, after an earlier' zoning listed t
ef~fort b'y~T . York City in 1916 (Report Going beyond district zoning, the statute
of Nationla:I C~ommission on Urban Prob- provides for subdivision platting (� 276,et
lems, p, 2flOj ',see L.1916, ch. .497). Since seq.). It does not provide support for the
then' they,' have been amended, usually in procedures essayed inthe Ramapo ordi-
identical Fashion, as the need for broader ance But what is important is that even
intensive subdivision regglation was re-
powers wfis envisaged and accepted; Arti- intensive subdivision g was e-
cle 16 of th,' Town Law is the enabling act quired to be, authorized by 'statute before
for towns. ection 261 in pertinent part towns could control subdivision developers.
provides': !For the purpose of promoting Statutory authorization 'was.all the more
�'1provides:eo prooi important oecause th oIst regulr-
the healthj?,'safety, morals, or the general important eause te t astic re -
welfare of:the community, the town board tion required the deveiopestprovide pri-
vate and public feiit$�s, ~i,; wholesale
is hereby 'emiowered by ordinance to regu- vate and public faclites ,. wholesale
late and restrict the height, number of sto-
ries and ~S.' of buildings and other struci eys and bonds to make surethat they per-
tures, the perrentage. of lot that may be oc- formed as promised Ngtaby no develop-
cupied,:the size of yards. courts, and other er is forbidden to develop'fot a period of
open spaces;'.the density of population, and years.
the locat'iori'and use of buildings,; struc-
338

The urgent need to control the tempo :.:Holding zones, that: is, areas reserved
and sequence of land development has been for future developmrent, if legislatively au-
recognized by courts, government commis- thorized and carefully circumscribed, can
sions, and commentators, validly, and effectively, :implement land
Techniques to control the rate, nature planning.., Both, the interests of localities
and sequence of community development and the,.broader interests of the State and
are plentiful although not all are presently its large metropolitan areas can be recon-
authorized or comport with constitutional ciled. :Indeed, it has been suggested by the
limitations. Thus, in Albrecht Realty Co. National Commission'on. Urban Problems
v. Town of New Castle, 8 Misc.2d 255, 167 that enabling legislation grant communities
N.Y.S.2d 843, the Town of New Castle in such.power. TThe devisjingand authoriza-
Westchester County sought to control tion of new powers, one of which is to cre-
growth by placing a moratorium'on the is- ate holding or delayed 4evelovpment zones,
suance of building permits for unspecified is a chief concern of the: State Office of
periods and with no apparent object other Planning Coordination. 'Indeed, it plays a
than controlling growth. The measure was prominent role in its proposed legislation.
voidedt because the enabling act did not au- Notably, in delayed development schemes
thori;� "a darecd regulation of the rate of limitations are invariably suggested, limita-
growth" (at p. 256, 167 N.Y.S.2d at p. tions absent in the Ramapo ordinance (e.
844), For another technique, in California g., 3- to 5-year lirnits,: regional and State
the purchase of "development rights" or a agency. review, provision for compensa-
time-limited easement by the local govern- tion). Such limitations may be essential if
ment reportedly has been employed. The the delegation is to be valid constitution-
community is saved the expense of pur- ally. Aside from considerations of unlim-
chasing the fee simple of the owner.' It ited delegation, without ;the standards
obtains flexibility by the power to release which universally circumscribe the conduct
land for development while landowners are of administrative agenciesi the limitations
compensated. The method is also said to reflect basic doctrine that even the State's
justify assessing or taxing the owner at a zoning. power is not' unlimited. As ob-
iowae iate (see Cutler, op. cit., supra, at p. served by the Pennsylvania Supreme
394). " A similar approach is followed in Court, "Zoning is a means by which a gov-
England and has been recently recomn- ernmental body can plan for the future-it
mehded by the President's National Corn- may not be used as a means to deny-the
mission on' Urban Problems (Report, at p. future'.' ';Communities must deal with the
251 ; Mandelker, Notes from the English: problems of population t hy may
$bltpensatIon in Town anal County Plan problems of population growth. They may
Coimpensation in Town and County Plan- t refuse to confront th:futur by adp-
nin'g''49 Ca]. ...Rev. 699; see, also, Ann., not refuse to confront th':lifuture by adopt-
Zon.ing - With C ompensa tion, 41 ALR ing zoning regulations that effectively re-
strict population to near present levels'.'
3d 636). -v,
Either by legislation, limited by decision-
A. common technique is minimum area al rule, or by decisiohni"rule alone a limit-
zoning'. If it does not amount to prohibi- ed amount of restraint in time has been
tory zoning, minimum lot requirements held valid in controlling development, even
may be used to regulate the tempo and se- without compensation.. Thus, in the State
quence of land development (see Matter of of Washington' it was juggested that the
Josephs v. Town Bd. of Town of Clarks- legislatively authorized.:'ight to impress
town, 24 Misc.2d 366, 198 N.Y.S.2d 695). "holding zones" on privyti property beyond
Unfortunately, however, the method is of- the immediate reak glopf' present develop-
ten 'used as an exclusionary or prohibitory ment, must be rieasrl_ imted im its du-
.deVice. ration;
':device. ration, .Significanl!y, the time limi-
.j: nalty there is the" technique sought to tations: should be',.: or reasonably
be 4exercised b)y Ramapo-a technique par- fixed, and justified byiemnergency or statu-
taking somewhat of the motivation for and t6ry authorization.
methods used in holding zones.

339

Jt is not necessary now, as observed lat- 3'hta itmY fo
qr~ to confront the serious constitutional is- mn esn hs osiuinlise
are better reserved for futture considera-
su",~raised by mandatory delayed develop- tion. There is little do~b* that the compul-
ment~v. The crtx ofthe matter in thesesion of current interests and conflicts will
cases Jp that, bcfore-wrestling with the con- rqiear-xtiainoimc ea n
stitutional issues the Ramapo ordinance isjuialtnkginhs Tepr-
des~troyed at the threshold. lIt lacks statu- 1m oeei o n~gl ssm
Gary authorization, and this despite the factstdnsoth
that its reach is more ambitious than any i o nuh sbethv one ui
is nt eoug toregulate.,land development.
before essayed even with enabling legisla- Teems eicniet ceo res
ti~~~~~~~~n. ~~~~~~~there will be little new ousing \cept that

extraplatio fromwhich government could-LAfford to build
existing enabling acts, one may not usurp (adleTeZnzgDlmt p 7
the~unique responsibility of the Legislature,51.Teeaejssmefth rols
even, wbere it has failed to act. What is tha th'aao riap glosses over as
,ose,. to do this, as a State Legislatureitaacstepolmfr'etonlne
would, not, without considering the social a1 deieta ab ' e.oetwslk
an~d economic ramifications for the locality, Rmp ol dpbtntal ihu
regions an~d State, and without limitations destroying the economyr and channelling
essential 'to abi intelligent delegation, is un- th deorpi coreoJh tt osi
sounds'~wl as invalid. Moreover, -to al- teronislritrss
low Ramnapo's idiosyncratic solution, which 'At least one of the cot Icurring opinions
would then he available to any other corn- at the Appellate Divi~on. raised another
m-funity. like Rainapo, may end inidefinitely constitutional question, na~mely, tlhe power
the possibility of commanding better legis- of the town to adjust txasesetsa
lation for land planning, just becatise such providecl in the ordinance
legislation requires some diminution in the The point would b~' gu'~salietit one, if
local control now exercised under the zon- reached. It and the'' other. constitutional
ing acts4" questions '~need not :ib4:-fiould not be
reached because it is vnouth that the ena-
*Th~re are, to lie sure, the constitutional hling acts do not permit the arrogation of
issues in the case. Some relate to thepoeththeamp riaepoecs
power of government to deprive the land-
owner 'of any reasonable use of his land Consequently, altbouibh"the town had no
for a period of years, up to IS years, with- power tinder the enabhin'gc to adopt the
out cotnpensation. These are knotty prob- ordinance in question, this does not mean
lenis confronting the draftsmen' of a land that the town is not faced with a grave
4evilpm~ent code. Tepolm'aentproblem. It is. Soa.,Aid the man-y towns
inst~erale. Theinitial, principa lnad ilageA in the State, iand elsewhere in
6o~nase, Euclid v. Ambler Co., 272 U. tecuty u hr odutta
S. , 6$-.47, S.Ct. I1, 1LE.33 ed the' Ramapos, in "Is~pationg cannot solve
ratheri flatly, as far back as 1926, that an 'tear 1prOblemns alonej.'Really, nmder exist-
owpern'tay he made to suffer a* substantial inaso41ia1;p~m~ly, or cconomi
losp in the economic potential of his land ay,'or1htii en heRnpo
wit out compensation. lBut it. has always 'utdo'wtthy'a i-vith ittznn
heefr ah'ad~ clear taanoercudotadsubdivision ,pati ~trl They
bev 4 of al reasonable use nor could my ntdcae ~ got n
his usfe be postponed for more thank'h short e'9mftfra~ni generation,
tim6,,'tvei if only to prevent' an 'ovIeiload& They may not sepairately , m concert imi-
ing of ijitinicipal facilities' ppik.,the freedom of' oye' ntt or residence
0: ths ttie hi brp even ity in-
geniqu&, ~sclimes No :it 'important
w ethe tirntxto , o exclude, if
tIa i'the efec o le rrogated pow-

340

'Th:e xclusionary effect of local efforts A glance at history suggests that Rama-
to preserve the country's Edens has been po's plan to have public services installed
laigelyf- noted. Professor Roberts, in an in advance of development. is unrealistic.
importan' essay, 'explores the conditions Richard Babcock, the distinguished practi-
bedevilling places like Ramapo but also as- tioner in land development law, some years
sesses the'calamitous effects of ill-advised ago addressed himself'to the natural desire
parochial devices (E. F. Roberts, The De- of; communities to stay development while
mise of Property Law, 57 Cornell L.Rev. they caught up with the inexorable thrust
1). The probletns of development of the of population growth and movement. Ile
larger community run so deep, he suggests observed eloquently that this country was
that: ";'Snob zoning,' of course, may best built and is still being built.by people who
be 'solved' by the legislature. This really moved about, innovated; pioneered, and
is the; lesson contained in Girsh which created industry and employment, and
seems, moderately enough, to suggest that thereby provided both the need and the
a regional planning mechanism should be means for the public services and facilities
devised to create a pluralist suburbia in that followed (Babcock; The Zoning Game,
which each. 'class could find its proper at pp. 149-150). Thus;'the movement has
placew, : More interest, however, is being not been in the other',direction, first the
gene,?ated by the notion of statewide land- provision of public andifility services and
use, planning which presumably would al- then the building of hoMies, farms, and
low each' class its niche outside center city. businesses. This court has said as much,
Whether this interest informulating state in effect, in Westwood Forest Estates v.
*platning ,derives from, a concern for the Village of South Nyack,'/23 N.Y.2d 424,
lower,.;orders or reflects instead an irrita- 297''N.Y.S.2d 129, 244' NAi,2d 710, supm)
'tion at .the lack of order when a multitude unanimously and in' rei1ape on common-
o'f tinyy hamlets makes any planning impos- place authority and prec'den'.:
sibet,-' sl difficult to tell." (at' p. 37). To
As said earlier, when the problem arose
leave;.vital decisions controlling the mix outside the State the judicial response has
and timing of development to the unfet- ieen the same, frustratfng iommunities, in-
tercd discretion of the local community in- tent on walling themselvai~from the main-
Ivite . isaster. streamr of development, inamely, that the
A glance at other legislation in this effort :was invalid under existing enabling
State reveals that regional or co-ordinated acis of unconstitutional.."'
planning is not new to the Legislature, al- The response:, may not be
beit the steps thus far taken may one day charged to judicial conservatism or self-re-
be regarded as quite primitive compared straint. In short, it has'no' been illiberal.
with what, necessarily, is to be. Article It: has 'indeed reflected the larger under-
12-B of the General Municipal Law,' Con- standing that American s0jiety is at a crit-
sol.Laws, c. 24, contains a congeries of ical crossroads in the aciommodation of
provisions authorizing optional metropoli- urbanizatioin 'and suburla'ni iving, with cf-
tan, regional, and county planning: boards. fects that'tire no longer o'lfined, bad as
Their powers are still rather limited. Per- they are, 'to ethnic exclusion or "snob"
haps' most interesting is section 239-1 of zoning i Ramapo would preserve its na-
that article which authorizes a scheme'for ture, delightful as that ,im be, but the su-
mandatory co-ordination in counties or re- pervening question is whether it alone may
gions of various kinds of zoning action by decide this 6r whether t,;'iust be decided
the included municipalities. The legisla- by th( 'larger cbmmuxt represented by
tiod is significant evidence of the activity the :Lgislatiir. .:jfvpolitically, eco-
and understanding of the Legislature in nomiall, and l , the ase for
land, use planning, into which Ramapo tlinaioier than that
would thrust itself beyond the limits now
authorized by law. ui .'
: Accordingly,; ' deissn vote to affirm
th ordersi 3h bot4t cdses:. -' 1'

341

CONSTRUCTION INDUSTRY ASSOC. OF SONCMA CO. v. CITY CF PETALUMA
522 F.2d 897 (9th Cir. 1975)
cert.den., 424 U.S. 934 (1976)

The City of Petaluma (the City) ap- and retard the accelerating growth of
peals from a district court decision void- the City, the Council in 1972 adopted
ing as unconstitutional certain aspects of several resolutions, which collectively are
its five-year housing and zoning plan. called the "Petaluma Plan" (the Plan).
We reverse.
The Plan, on its face limited to a five-
Statement of Facts year period (1972--1977),1 fixes a housing
The City is located in southern Sono- development growth rate not to exceed
ma County, about 40 miles north of San 500 dwelling units per year.2 Each
Franciso. In the 1050's and 1960's, Pet- dwelling unit represents approximately
aluma was a relatively self-sufficient three people. The 500-unit figure is
tbwn. It experienced a steady popula- somewhat misleading, however, because
tion growth from 10,315 in i950 to 24,- it applies only to housing units (herein-
870 in 197'0. Eventually, the City was after referred to as "development-units")
drawn into thle Bay Area metropolitan that are part of projects involving five
housing market 1as people working in units or more. Thus, the 500-unit figure
San Francisco and San Rafael became does not reflect any housing and popula-
willing to commute longer distances to tion growth due to construction of sin-
secure relatively inexpensive housing gle-family homes or even four-unit apart-'
available there. By November 1972, ac- ment buildings not part of any larger
cording to unofficial figures, Petaluma's project.r
population was at 30,500, a dramatic in- The Plan also positions a 200 foot wide
crease of almost 25 per cent in little over "greenbelt" around the City,3 to serve as
two years., a boundary for urban expansion for at
In 1970 and 1971, the years of the least five years, and with respect to the
most rapid growth, demand for housing east and north sides of the City, for per-
in the City was even greater than above haps ten to fifteen years. One of the
indicated. Taking 1970 and 1971 togeth- most innovative features of the Plan is
er, builders won approval of a total of the Residential Developmient Control
2000 permits although only 1482 were System which provides procedures and
actually completed by the end of 1971. criteria for the award of the annual 500
Alarmed by the accelerated rate of development-unit permits. At the heart
growth in 1970 and 1971, the demand for of the allocation procedure is an intricate
even more housing, and the sprawl of point system, whereby a builder accumu-
the City eastward, the City adopted a lates points for conformity by his
temporary freeze on development in ear- projects with the City's geieral plan and
ly 1971. The construction and zoning environmental design plans, for good ar-
change moratorium was intended to give chitectural design, and for providing low
the City Council and the City planners and moderate income dwelling units and
an opportunity to study the housing and various recreational facilities. The Plan
zoning situation and to develop short and further directs that allocations of build-
long range plans. The Council made ing permits are to be divided as evenly
specific findings with respect to housing as feasible between the west and east
patterns and availability in Petaluma, in- sections of the City and between single-
cluding the following: That from 1960- family dwellings and multiple residential
1970 housing had been in almost unvary. units (including rental units),4 that the
ing 6000 square-foot lots laid out in reg- sections of the City closest to the center
ular grid patterns; that there was a den- are to be developed first in order to
sity of approximately 4.5 housing units cause "infilling" of vacant area, and that
per acre in the single-family home areas; 8 to 12 per cent of the housing units
that during 1960-1970, 88 per cent of approved be for low and moderate in-
housing permits issued were for single- come persons.
family detached homes; that in 1970, 83 In a provision of the Plan, intended to
per cent of Petaluma's housing was sin. maintain the close-in rural space outside
gle-family dwellings; that the bulk of and surrounding Petaluma, the City so-
recent development (largely single-fami- licited Sonoma County to establish strin-
ly homes) occurred in the eastern por- gent subdivision and appropriate acreage
tion of the City, causing a large deficien- parcel controls for the areas outside the
cy in moderately priced multi-family and urban extension line of the City and to
apartment units on the east side. limit severely further residential infill-
To correct the imbalance between sin- ing. !
gle-family and multi-family dwellings, 342
curb the sprawl of the City on the east,

Purpose of the Plan According to undisputed expert testi-
The purpose of the Plan is much dis- mony at trial, if the Plan (limiting hous-
puted in this case. According to general ing starts to approximately 6 per cent of
statements in the Plan itself, the Plan existing housing stock each year) were
was devised to ensure that "development to be adopted by municipalities through-
in the next five years, will take place in out the region, the impact on the hous-
a reasonable, orderly, attractive manner, ing market would be substantial. For
rather than in a completely haphazard the decade 1970 to 1980, the shortfall in
and unattractive manner." The contro- needed housing in the region would he
versial 500-unit limitation on residential about 105,000 units (or 25 per cent of the
development-units was adopted by the units needed). Further, the aggregate
City "[i]n order to protect its small town effect of a proliferation of the Plan
character and surrounding open space." 6 throughout the San Francisco region
The other features of the Plan were de- would be a decline in regional housing
signed to encourage an east-west balance stodk quality, a loss of the mobility of
in development, to provide for variety in
densities and building typesandwidecurrent and prospective residents and a
densities and building types and wide
deterioration in the quality and choice of
ranges in prices and rents, to ensure in- housing available to income earners with
filling of close-in vacant areas, and to
filling of close-in vacant areas, and to real incomes of $14,000 per year or less.
prevent the sprawl of the City to the If, however, the Plan were considered by
east and north. The Construction Indus- itself and with respect to Petaluma only,
itself and with respect to Petaluma only,
try Association of Sonoma County (the
there is no evidence to suggest that
Association) argues and the district court
found, however, that the Plan was pri-
marily enacted "to limit Petaluma's de- quality and choice of housing available
marily enacted "to limit Petaluma's de-
there to persons in the lower and middle
housing and in the immigration income brackets. Actually, the Plan in
housingandeints.e immigruction on r sn e w creases the availability of multi-family
residents." Construction Industry Assn. units (wnr-ccpied d rental units)
v. City of Petaluma, 375 F.Supp. 574, 576 units (owner-occupied nd rental units)
(N.D.Cal.1974). and low-income units which were rarely
constructed in the pre-Plan days.
Market Demand and Effect of the Plan
In 1970 and 1971, housing permits Although rw' a onclude that
were allotted at the rate of 1000 annual- appellees lack standing to assert the
ly, and there was no indication that rights of third parties, they nonetheless
without some governmental control on having standing to maintain claims
growth consumer demand would subside based on violations of rights personal to
or even remain at the 1000-unit per year them. Accordingly, 'apellees have
level. Thus, if Petaluma had imposed a standing to challenge the Petaluma Plan
flat 500-unit limitation on all residential on the grounds aasertd in their com-
housing, the effect of the Plan would plaint that the Plan iX arbibrary and thus
violative of their d .rioeess rights
clearly be to retard to a substantial de- volate of their u rocess rights
gree the natural growth rate of the City. guaranteed by the FOrWenth Amend-
ment and that the Pjaq:':p es an unrea-
Petaluma, however, did not apply the
sonable burden On iat Site commerce.
500-unit limitation across the board, but
Se& Steel Hill Develop~ent, Inc. v. Town
instead exempted all projects of four See Steel Hill Developiwnt Tnc. v. Town
units or less. Because appellees failed to of San ton, 469 F.2d , 959 (1St Cir.
introduce any evidence whatsoever as to 1972); Sisters of Providence of St. Mary
the number of exempt units expected to of the Woods v. CtYo vstn 88
be built during the five-year period, the fact
effect of the 500 development-unit limi- that one'of the Ladowner' s property
lies wholly outside' the' present City
tation on the natural growth in housingies pr ty
is uncertain. For purposes of this deci- boundaries and that the other's property
s uncertain. For purposes of this deci-
lies mostly outside the boundaries is no
sion, however, we will assume that the
00 dhevelop ment-unit growth rate is in bar to their challenging 'the City's Plan
500 development-unit growth rate is in
fact below the reasonably anticipated Wh ich has a direct, intended and Smmed-v
market demand for such units and that ate effect on the property.
market dePmand for suP units and that City of Indian Wells, 6 Cal.3d 541, 548--
49, 99 Cal.Rptr. 745,. 749-50, 492 P.2d
would grow at a faster rate.
113 7, 114 1-42 (1972).

343

Other Challenges to the Plan dom, of the Petaluma Plan is at issue in
Although the district court rested its this suit.
decision solely on the right to travel It is well settled that zoning
claim,F all the facts and legal conclusions regulations "must find their justification
necessary to resolve appellees' other in some aspect of the police power, as-
claims are part of the record. Thus, in serted for the public welfare." Village
order to promote judicial economy, we of Euclid v. Ambler Realty Co., 272 U.S.
now dispose of the other challenges to 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303
the Plan.; See Blaney v. Florida Nation- (1926). The concept of the public wel.
al Bank at Orlando, 357 F.2d 27, 28 (5th fare, however, is not limited to the regu.
Cir. 1966); Necchi v. Necchi Sewing Ma- lation of noxious activities or dangerous
chine Sales Corp., 348 F.2d 693, 697 (2d structures. As the Court stated in Ber.
Cir. 1965), cert. denied, 383 U.S. 909, 86 man v. Parker, '348 U.S. 26, 33, 75 S.Ct.
S.Ct. 892, 15 L.Ed.2d 664 (1966). 98, 102, 99 L.Ed. 27 (1954):
Substantive Due Process The concept of the public welfare is
Appellees claim that the Plan is arbi- broad and inclusive. The values it
trary and unreasonable and, thus, viola- represents are spiritual as well as
tive of the due process clause of the physical, aesthetic as well as monetary.
Fourteenth Amendment. According to It is within the power of the legisla.
appellees, the Plan is nothing more than ture to determine that the community
should be beautiful as well as healthy,
an exclusionary zoning device,10 designed should be beautiful as well as halh
solely to insulate P'etaluma from the ur- spacious as well as clean, well-balanced
ban complex in which it finds itself. as well as carefully patrolled.
The Association and the Landowners re- In determining whether the City's in-
ject, as falling outside the scope of any terest in preserving its small town char.
legitimate governmental interest, the acter and in avoiding uncontrolled and
City's avowed purposes in implementing rapid growth falls within the broad con-
the Plan-the preservation of Petaluma's cept of "public welfare,"' we are consid-
small town character and the avoidance erably assisted by A, recent cases.
of the social and environmental problems Belle Terre, supra, and .Ybarra v. City of
caused by an uncontrolled growth rate. Town of Los Altos Hills, 503 F.2d 250
(9th Cir. 1974), each of:, hich upheld as
In attacking the validity of not unreasonable a zoning regulation
the Plan, appellees rely heavily on the much more restrictive than the Petaluma
district court's finding that the express Plan, are dispositive of the due process
purpose and the actual effect of the Plan issue in this case.
is to exclude substantial numbers of peo- In Belle Terre the' Sume Court re-
ple who would otherwise elect to move jected numerous challetges to a vil-
to the City. 375 F.Supp. at 581. The lage'l restricting : liid use to
existence of an exclusionary purpose and one-family ' dwelling~ exIluding lodging
effect reflects, however, only one side of houses, boarding houses, fraternity hous-
the zoning regulation. Practically all et or multiple-dwelling houses. By abso-
zoning restrictions have as a purpose and lutely prohibiting the construction of or
effect the exclusion of some activity or conversion of a building. to other than
type of structure or a certain density of single-family dwelling, the village en-
inhabitants. And in reviewing the rea- sured that it would never grow, if at all,
sonableness of a zoning ordinance, our much larger than its population of 700
inquiry does not terminate with a find- living in 220 residences., Nonetheless,
ing that it is for an exclusionary pur- the Court found that the'prohibition of
pose." We must determine further boarding houses and other multi-family
whether the exclusion bears any rational dwellings was reasonable and within the
relationship: to a legitimate state inter- public welfare because ouch dwellings
est. If it' oes not, then the zoning regu- present urban problen, siuch as the oc-
lation isinvalid. If, on the other hand, a cupation of a given %spa by more peo-
legitimate state interest is furthered by pie, the increase in tralic and parked
the zoning regulation, we must defer to cars and the noise that~'omes with in-
the legislative act. Being neither a su- creased crowds.
per legislature nor a zoning board of ap-
peal, a federal court is without authority
to weigh 'nd reappraise the factors con-
sidered or ignored by the legislative body
in passing the challenged zoning regula-
tion.2 t'he reasonableness, not the wis- 344

While appellees that unlike the situation in the
dissenting from the majority opinion in past most municipalities today are nei-
Belle Terre on the ground that the regu- ther isolated nor wholly independent
lation unreasonably burdened the exer- from neighboring municipalities and
cise of First Amendment associational that, consequently, unilateral land use
rights, Mr. Justice Marshall concurred in decisions by one local entity affect the
the Court's express holding that a local needs and resources of an entire region.
entity's zoning power is extremely It does,;inot necssarily
broad. follow, however, that the due pnro
rights of builders and landowners are .'
olated merely because a local entity ei.
Following the Belle Terre decision, ercises in its own self-interest the pelltk
this court in Los Altos Hills had an op- power lawfully delegated to it by the
portunity to review a zoning ordinance state. See Belle Terre, supra; Los Altai
providing that a housing lot shall be con- Hills, supra. If the present system of
tain not less than one acre and that no delegated zoning power does not eftfor
lot shall be occupied by more than one tively serve the state interest in further.
primary dwelling unit. The ordinance as ing the general welfare of the region A
a practical matter prevented poor people entire state, it is the state legislaturfe
from living in Los Altos Hills and re- and not the federal courts' role to irtr?.
stricted the density, and thus the popula- vene and adjust the system. As startef
tion, of the town. This court, nonethe- supra, the federal court"is not a Sullp
less, found that the ordinance was ra- zoning board and should not he calleden
tionally related to a legitimate govern- to mark the point at which legitimate
mental interest-the preservation of the local interests in promoting the welfare
town's rural environment-and, thus, of the community are outweighedl y leI
did not violate the equal protection gitimate regional intereStgS See N(te,
clause of the Fourteenth Amendment. supra, at 608-11.
503 F.2d at 254. We conclude therefore that un.
Both the Belle Terre ordinance and der Belle Terre and Los Altos Hills the
the Los Altos Hills regulation had the concept of the public Walfare is suffi-
purpose and effect of permanently re- ciently broad to uphold Petaluma's desire
stricting growth; nonetheless, the court to preserve its small town character, its
in each case upheld the particular law open spaces and low density of popula-
before it on the ground that the regula- tion, and to grow at an orderly and de-
tion served a legitimate governmental liberate pace.
interest falling within the concept of the 'cmmer '
public welfare: the preservation of quiet
family neighborhoods (Belle Terre) and The district court founW`that housing
the,preservation of a rural environment in Petaluma and the surrounding areas
(Los Altos Hills). Even less restrictive is produced substantially' through goods
or exclusionary than the above zoning and services in interstate!o'mmerce and
ordinances is the Petaluma Plan which, that curtailment of residni:ial growth in
unlike those. ordinances, does not freeze Petaluma will cause seriotiWidislocation
the population at present or near-present to commerce. 375 F.Supp. at 577, 579.
levels. Further, unlike the Los Altos Our ruling today, however, that the Pet-
Hills ordinance and the various zoning alumsa Plan represents a reasonable and
regulations struck down by state courts legitimate exercise of the police power
in recent years, the Petaluma Plan does obviates the necessity of remanding the
not have the undesirable effect of wall- case for consideration of appellees' claim
ing out any particular income class nor that the Plan unreasonably burdens in-
any racial minority group.' terstate commerce.
Consequently, since the local
Although we assume that regulation here is rationally related to
some persons desirous of living in Peta- the social and environmniitall welfare of
luma will be excluded under the housing the community and does not-discriminate
permit limitation and that, thus, the against interstate commerce or operate
Plan may frustrate some legitimate re- to disrupt its required uniformity, appel-
gional housing needs, the Plan is not ar- lees' claim that the Plan: unreasonably
bitrary or unreasonable. We agree with burdens commerce must fail.
Reversed. l'

345

ASSOCIATED HOME BUILDERS OF THE GREATER EASTBAY, INC. v. CITY
OF LIVERMCRE, No. S.F. 23222 (557 P.2d 473, 135 Cal. Rptr.41)
(Cal.Sup.Ct. Dec. 17, 1976)

. We face today the q'uestion of the validi- city's building inspector, whose decisions
ty of an initiative ordinance enacted y. ythe are subject to judicial review by writ of
voters of the City of Livermore which pro- mandamus.
hibits issuanceq,f further residential build- Finally, we reject l;lintiff's suggestion
ing permits until local educational, sewage that we sustain the trial court's injunction
disposal, and water supply facilities comply on the ground that the ordinance unacnsti-
with specified standards.' Plaintiff, an as'- utionally attempts to bar immigration to
sociation of contractors, subdividers, and Livermore. Plaintiff's contention symholiz-
other persons interested in residential con- es'the growing conflict between the efforts
struction in Livermore, brought this suit to heck disordle.-
enjoin enforcement of the ordinance. The ly development, with its concomitant prol-
superior court issued a permanent injunc- lems of air and waer pollution and inde-
tion, and the city appealed, quate public facilities, and the increasing
In Hurst v. City of Burlingame (1929) 207 pulilic need for adelu:le housing apportuni-
Cal. 134, 277 P. 308, we held that statutes ties. We take . this opportunity, therefore,
.requiring notice and hearing to precede en- to reaffirm and clarify the principles which
actment of municipal zoning tand land use govern validity of, land use ordinances
ordinances appliedl to initiatives, a holding which substantially limit immigration into a
which effectively denied voters of general community; we hold that such ordinances
law cities the power to enact such legisla- need not be sustained by a compelling state
tion by initiative. In accord with thtl interest, but are constitutional if they are
priecedent, the trial court here held that reasonably related to the welfare of the
Livermore,- as a general law city, lackth region affected ry the ordinance . ince on
authority to enact the initiative ordinance the limited record before us plaintiff has
at issue. We have concluded, however, that not demonstrated that the Livcrmore orfli-
HUr-t was incorrectly ,decided;statuto- ,nance lacks a reasonable relationship to the
~~~Hurst deas i ecidued; the s o regional welfare, we cannot hold the ordi-
ry notice and hearing provisions govern th rd
only ordinances enacted by city council ac-
lion and do not limit the power of municipal 1. Summary of proceedinks.
electors, reserved to them by. the state Con- The initiative ordinance in question was
stitution, to enact legislation by initlive. enacted by a majority of the voteis at the
We thereforereverse the trial court lhlding Livermore municipal election of April 11,
on this issue. 1972, and became effective on April 28,
We also reject the trial court's alternative 1972. The ordinance, set out in full in the
holding that the ordinance is unconstitu- margin,2 states that it was enacted to fur-
tioinally vague. By interpreting the ordi-
nance to incorporate standards established 2. The initiative provides as follo*s:
by the Livermore Valley Jioint School I)is- "INITIATIVE ORDINANCE RE
BUILDING PERMITS
trict antd the Regional Water Quality Con- "An ordinance to control residential building
trol Board, we render its terms sufficiently permits in the City of Livermore:,
specific to comply with constitutional requi- "A. The people of the City of Livermore here-
sites. The failure of the ordinance to desig- by find and declare that it is in the best
~natehe person or agency who de ~rmininterest of the City in order to protect the
nate the person or agency who determines - health, safety, and general welfare of the
when its standards have been fulfilled does citizens of the city, to control residential
not make it unconstilutionally vtague; the building permits in the said city. Residen-
-luty to enforce the ordinance reposes in the. �tial building permits include single.family
duty to enforce the ordinance reposes in the residential, multiple residential and trailer
residential, multipit residential, and trailhr
court building permits within the meaning
1. For the history of the events leading to the of the City Code of Livermore and the
enactment of the: Livermore ordinance see General Plan of Livermore. Additionally,
Stanfprd Environmental Law Society, A Hand- it is the purpose of this initiative measure
book' for Controlling Local Growtb (1973) to contribute to the solution of air pollu-
pages 90 96; Deulsch, Land Use Growth Con- tion in the City of Livermore.
trqlas * A Case Study of San Jose and Livermore. "B. The specific reasons for the proposed po-
'4allfornia (1974) 15 Santa Clara Law. 1, 12 14. .- sition are that the undersitned believe

346

ther the health, safety, and welfare of the sion and legislative body." 'The superior
citizens of Livermore and to contribute to court concludled that notice and hearing
the solution of air liollution. Finding that must precede enactment of any (rdinanice
excessive issuance of residential building regulating land use. Since Livermore
permits has caused school overcrowding, passed its ordinance pursuant to the proce-
sewage pollution, and water rationing, the dures specified in the statutes governing
ordinance prohibits issuance of further per- municipal initiatives (Elec.Code, � 4000 et
mits until three standards are met: "1. seq.), which do not provide'for hearings
EDUCATIONAL FACILITIES-No double before the city planning commission or
sessions in the schools nor overcrowded council, the court held the ordinance inval-
'~ classrooms as determined by the California ii.
Education Code. 2. SEWAGE-The sew- The amentment of the California
age treatment facilities and capacities meet Constitution in 1911 to provide for the ini-
the standards set by the Regional Water tiative and referendur signifies one of the
Quality Control Board. 3. WATER SUP- outstanding ichievements of the progres-
PLY-No rationing of water with respect Sive movement of the early 1900's.' I)rafl-
to human consumption or irrigation and ed in light of the theory that all )ower of
adequate water reserves for fire protection government ultimately resides in the pIo-
exist." pie, the amendment speaks ot the initiative
Plaintiff association filed suit to enjoin and referendum, not as a right granted thy
enforcement of the ordinance and for de- people, but as a power reserved by thems
claratory relief. After the city filed its Declaring it "the duty of the courts to
answer, all parties moved for judgment,on jealously guard the right of the people"
the pleadings and stipulated that the court, (Martin v. Smith (1959) 176 Cal.App.2d 115,
upon the pleadings and other documents 117, 1 Cal.Rpltr. 307, 309), the courts have
submitted, could determine the merits of described the initiative and referendum as
the cause. On the basis of that stipulation articulating "one of the most plreious
the court rendered findings and entered rigbts of our democratic process." (Mer-
judgment for plaintiff. The city appeals vynt v. Acker, supra, 189 Cul.App.2cs 5,
from that judgmentr. 563, 11 Cal.Rptr. 340, 344),. `"[I]t has long
2. The enactment of the Livermore ordi- been our judicial 'policy to apply a liberal
2. The enactment of the Livermore ordei-
nanc initiative does not violate the construction to this power wherever it is
challenged in order that th6 right bh not
state zoning law, improperly annulled. If doubts can reason-
The superior court found that the initia- ably he resolved in favor of the'use of this
tive ordinance was adopted "without corm- reserve power, courts will preserve it."
plying with the statutes . govern-
ing general law cities," specifically Govern- 3, Government Code section 65853 provwe in
ment Code sections 65853 through 65857. part that: "A zoning ordinance or an amend-
These sections provide that any ordinance ment to a zoning ordinance, which amendment
which changes zoning or imposes a land use changes any property from one zone to another
restriction listed in Government Code s- or imposes any regulation listed in Seclion
restriction listed in Government Code see- 65850 not theretofore imposed'or removes or
tion 65850 can be enacted only'after noticed modifies any such regulation therefore Imposed
heiaring before the city's planning c(ilrmis- shall be adopted in the manner set forth in
Sections 65854 to 65857, inclusive. ' Any other
amendment to a zoning ordinance may be
that the resulting impact from issuing' res- adopted as other ordinances are adopted."
idential building permits at the current Section 65854 provides for notice and hearing
rate results in the following problems before the planning commission.' Section
mentioned' below. Therefore no furthef 65855 requires the commission to render a
residential permits are to be issued by the written recommendation to the 'qty legislative
said city until satisfactory solutions, as body. Section 05856 requires a noticed public
determined in the standards set forth, ex- hearing before the legislative body. -l-nally,
section 65857 Atithorize. the city legislative
ist to all the following problems: body to approve, modify, or disapprove. the
"I1 EDUCATIONAL FACILITIES-No ordinance, but provides that no modification of
double sessions in the schools ncr over- the ordinance not previously.conaldered;l e the
crowded classrooms as determined by the planning commission can bq addptjd without
California Education Code. first referring that matter to the'commiission.
"2. SEWAGE-The sewage treatmentl i .. ,
facilities and capacities meet the stan- 4. See Note, The Scope of the Inilidtlve and
dards set by the Regional Water Quality Referendum in California (966) 54 CaLL.Rev.
Control lBoard. 1.
"3, WATER SUPPLY-No rationing of 5. See Builders Assti. of Santa Cahri-Santa Cruz
water with respect to human consumption Counties v. Superior Court (1974) 13 Cal.3d
or irrigation and adequate water reserves 225, 231, 118 Csl.Rptr. 158, 529 P.2d 582; Blot-
for fire protection exist. ter y. Farrell (1954) 42 Cal,2d 804, 809, 270
"C.. This ordinance may only be amended or P.2d 481; Ley v. Dominguez (1931) 212 Cal.
repealed by the voters at a regular municl- 587, 593, 299 P. 713; Dwyer v. 4City Council
pal electiodn (1927) 200 Cal. .:', 513, 253 P. 932; 'Gaylt' v.
"D. If. any portion of this ordinance is de- Hamm (1972) 25 Cai.App.3d 250, ;iJ8, 101 C'al
dclared invalid the remaining portions are Rptr. 628; Mervynne v. 'Acker (1951 189 i al.
to be considered valid." 4pp:2d 558, 563, 1': Cal.Rptr.'340,'

347

(Mclvynne v. Acker, suprA, 189 Cal.App.2d court in the instant case based its ruling.
558, 563. 564, 11 Cal.Rptr. 340, 344; Gayle v. The City of Burlingame had enacted by
Hamm, supra, 26 Cal.App.34d250, 258, 101 initiative a city-wide zoning ordinance
Cal.Rptr. 628.)e which classified as residential the property
The 1911 aumendment, in reserving the where plaintiff had a retail store. Contendl-
right of initiative to electors of counties and ing that he had been denied the right to a
cities, authorized the legislature to estab- public hearing established in the Zoning Ac
lish procedures to facilitate the exercise of of 1917 (Stats,1917,p. 1419), plaintiff sued
that right.7 Accordingly the Legislature to enjoin enforcement of the ordinance.
enacted staltuti, now codified as sections Beginning with the premise that "an ordi-'
4000 4028 of the Electidn Code, providing nance proposed by the el&ctors of a county
for the circtilatioEl of petitions, the calling or of a city in this state under the initiative
law must constitute such legislation as the
of elections, and other procedures required law must constitute such legislation as the
to enactions, an- i ti e meaure. legislative body of such'county or city has
to enact an initiative measure.
the power to enact . ." (207 Cal. at
The 1911 amendment was first applied to
zoning matters in 1927 in wyer v. City p. 140, 277 P. at p. 311), the Hurst court
Zoning matters in 1927 in Dwyer v. City
Concil, supri, 200 Cal. 505, 253 P. 932, in reasoned that since the board of trustees of
which the court mandated the Berkeiey the City of Bhrlingame could not lawfully
City Council to submit a zoning ordinance enact a zoning ordinance without complying
to referendum. The opinion reasoned that with the hearing requirement of.the state
since the city council had the legislativee law, the voters could not adopt such an
authority to enact zoning ordinances, the ordinance by initiative.
people had the powerto do so by initiative Responding to the argument that the en-
or referendum. Rejecting an argument actment of the ordinance complied with the
that the referendum procedure denied af- state initiative law, the court stated that
fected persons the right, granted them by "The initiative law and the zoning law are
municipal ordinance, to appear before the hopelessly inconsistent and inlFonflict as to
city council and state their views on the the manner of the preparation and adoption
ordinance, the court replied that "the mat- of a zoning ordinance. The Zoning Act is a
ter has been removed frotn the forum of the special statute dealing with a particular
Council to the forum of the electorate. The subject and must be deemed to be cpntrol-
proponents and opponents are given all the ling over the initiative, which is general in
privileges and rights to express themselves it scope." (P. 41, 277 P. at p. Si) Final-
in an open election, that a democracy or ly, the court distinguished Dwyer v. City
republican form of government can 'afford Council, supra, 200 Cal. 505, 258 P. 932, on
to its citizens . . . It is clear that the the ground that Dwycr upheld a referen-
constitutional right reserved by the people dum, and thus persons affected by the ref-
to submit legislative questions to a direct erendum had already been granted a right
vote cannot be abridged by any procedural to notice and hearing at the time of the
requirements . . .." (200 Cal. at P original enactment of the ordinance. (See
516, 253 P. at p. 936.) 207 Cal. p. 142, 277 P. 308.)
Two years later the court decided Hurst Although Hurst thus held the Burlin-
v. City of Burlingame, supra, 207 Cal. 134,
game initiative invalid for noncompliance
277 P. 308, the decision on which the trial with the state zoning law, the court added a
0. See Farley v. Iealy (1967) 637 Cal.2d 325, constitutional dictum, asserting that "the
328, 62 Cal.Rptr. 26, 431 P.2d 650; McFadden statutory notice and hearing ,.. . he-
v. lordan (1948) 32 Cal.2d 330, 332, 196 P.2d comes necessary in order ttq.satisfy the re-
787; Iage v. Jordan (1944) 23 Cal.2d 794, 799, quirements of due process . .," (P.
147 P.2d 387; cf. Hunt v. Mayor & Council of 141, 277 P. at p. 311.) In later years this
Riverside (1948) 31 Cal.2d 69, 628, 191 P.2dhe
426 (referendum), costtu'o'
.... : , v statutory holding of Hurst. Courts and
7. The Initiative and referendums a'i6endrnent, commentators alike questioned Hurst's stat-
formerly article IV, section t, of the California utory holding,8 but reexamination of that
Constitution, stated in part that "The initiative' holding seemed pointless if the landowncrs
and referendum powers of the people are here-
by. further reserved to the electors of each right to notice and hearing derived from
county, city and .ounty, city and town of the constitutional compulsion 'independent of
State to be exercised urider such procedure as statute.
may be provided by low, -Th.:~�s sectlvr Two years ago, however, in ~:'Diego
is self-executing, but legislation may be enacted Two years ago, however, in Digo
to* facilitate Its operation, but in no way limit- Bldg. Contractors Assn. v. City Council
in~ or restricting either the provsions of this
section or the powers herein reserved." This 8. See Taschner v. City Council (1973) 31 Cal..
language was repealed In 1966 and replaced by App.d 48, 65, 107 Cal.Rptr. 214; Bayles v.
article IV section 25. which provides that "Ini- Limber (1972) 26 Cal.App.3d 463, 469, footnote
tiaclve and referendum6 powersumay be exer-
tiative and referendum powers~ may be exer- 5, 102 Cal.Rptr. 647; Hagman et al., California
cised by the electors ot each 'city or county Zoning Practice (Cont.Ed.Bar 1969) age 105.
under procedures tlhat the Legislature shall pro- 9. See discussion in Taschner v. Clt C:i"ncll.
vide." supra, 31 CaLApp.3d 48, 65. 107 C:l4i*'. 214.

348

(1974) 13 Cai.3d 205, 216, 118 Cal.Rptr. 146,, any more than the provisions' of the initia-
529 P.2d 570 (app.,dismissed, - U.S. -, tive law govern the enactment of ordi-
96 S.Ct. 3184, 49'- L.Ed.2d -i-- (1976) we nances in council. No one-vwould contend,
expressly disapproved the constitutional for example, that'an initiative of the people
dictum 9f Hurst and later decisions. We failed because a quorum of councilmen had
held that a city violates no constitutional not voted upon it, any more than one would
prohibition in enacting a zoning ordinance contend that an ordinary ordinance of a
without notice and hearing to landowners, council failed because a' majority of voters
and hence may do so by initiative, (13 had not voted upon it.
Cal.3d at pp. 217--218, 11$ Cal.Rptr. 146, 529 In the second place, Hurst, in treat-
P.2d 570.) That decision clears the way for ing the case as one involving a confict
a long-needced reconsideration of the actual between two statutes of equal status-the
holding of Hurst that bars a general law zoning law and the initiative law-ovcr-
city from enacting a zoning ordinance by looked a crucial distinction: that although
initiative. / the procedures for exercise of the right of
At first glance it becomes apparent that initiative are spelled out in the initiative
something must hIe wrong with the reason- law, the right itself is guaranteed by the
ing in Hurst. Starting from a premise of Constitution. 'The 1911 constitutional
equality-that the voters possess only the amendment, in reserving the right of initia-
same legislative authority as does the city tive on behalf of municipal voters, stated
council-Hurst arrived at the conclusion that "This section is self-executing, but leg-
that only the couhcil and not the voters had islation may be enacted to facilitate its op-
the authority to enact zoning measures. eration, but in no way limiting or restrict-
Thus in the name of equality Hurst decrees ing either the provisions of this section or
inequality. The errors which lead to this the powers herein reserved." 4Former Cal.
non-sequitur appear after further analysis., Const., art. IV, � 1.) (Emphasis added.) 12
First, Hurst, erroneously contriving a Although the Legislature carl specify the
conflict between state zoning statutes and manner in which general law cities enact
the initiative law, set out to resolve that ordinances restricting land use,'3 legislation
presumed conflict.t0 No conflict occurs, which permits council action but effectively
however; the Iegislature never intended bars initiative action may run afoul of the
the notice and hearing requirements of the' 1911 amendment. (See Comment, op. cil.,
zoning law to apply to 'the enactment of 'supra, 64 Cal.L.Rev. 74, 102.) Thus the
zoning initiatives. (See Comment, The Ini- notice and hearing provisions 'of the state
tiative and Referendum's Use in Zoning zoning law, if interpreted to bar initiative
(1976) 64 Cal.L.Rov. 74, 104- 105.) The Leg- land use ordinances, would be of doubtful
islature plainly drafted the questioned pro- constitutionality; all such doubt dissolves in
visions of the zoning Jaw' with a view to the light of an interpretation which limits
ordinances adopted by vote of the.city coun- those requirements to ordinances enacted
cil; the provisions merely add certain addi-' erwis might require joint action of the state
tional procedural requirements to those al- and both the'collnties affected, but'permitted
ready specified in Government Code sec- that action'only if the legislating county coin-
tions 36931-36937 for the enactment of or- plied with requirements designed to protect thy
. interests of the state and the neighboring coun-
dinances in' general. 'Procedural require- ty, distinguishes Galvin from the present case.
ments which govern couneil action, how- 12. Article IV of the California Constitution was.
ever, generally do not apply to initiatives," revised in 1966. The right of municipal initia-
tive now appears in section 25, which states
10. "The fundamental test as to whether stat- simply that "Initiative and referendum powers
utes are in conflict with each other is the legis- may be exercised by the electors of each city or
lative intent. 'If it appears that the statutes county under procedures that the Legislature
were designed for different purposes, they are shall provide." The' 1966 cpnstitutional revi-
not irreconcilable, and may stand together." sion was intended solely to shorten and simpli-
(People v. Lustman (1970) 13 Cal.App.3d 278, fy the Constitution, deleting unnecessary provi.
288, 91 Cal.Rptr. 548, 555; Rudman v. Superior sions; it did not enact any substantive change
Court (1973) 36 Cal.App.3d 22, 27, 111 Cal. in the power of the LegislMture.and the people.
Rptr. 249.) The drafters of the revision eopressly statL 1
that they proposed deletion of the clauses bar-
II. See Blotter v. farrell, supra, 42 Cal.2d 804, ring the Legislature from restricting the re
270 P.2d 481; Bayless v, Limber, supra, 26 served power of municipal initiative solely on
Cal.App.3d 463, 469, footnote 5. 102 Cal.Rptr the ground that it was surplusage, and that the
647. * deletion would be made "without, In the end
In Galvin v. Board of Supernisirs (1925) 195 result, changing the meaning of the provi-
Cal. 686, 235 P,450, we held that the County of sions. (Cal.Const. Revision Com. (196) Pro
Contra Cotta.could not by initiative award a posed Revision of the Cl.Const. pp..4-5l .)
franchise for a -toll bridge spanking navigable 13, Article XI, section 2 of the California ionsti-
waters to neighboringSolano County without tution authorizes the Legislature to P"rovide
complying with statutory requirements for ad- for city powers"; article XI, section 7 states
vance approval by the state 'egineer and a that a' "city may make and enforce withil its
'public hearing. The exceptional character of limits all local, police, sanitary, and other ordi-
the statute Involved'in Galvin, which permitted nances and regulations not in conflict with gen-
one county to legislate on a matter which oth- eral laws." (Emphasis added.)

349

by city councils. The notice and hearing provisions of the
The fact that the zoning law is a special present zoning law (Gov.Code, �� 65853-
statute will not support Hurst; special'leg- 65857), like the provisions of the 1911 law
islation is still subject to constitutional limi- before the Hurst court, make no mention of
tations. If, for example, a "special" statute zoning by initiative. The proceduies they
were enacted prohibiting 'criticism of a prescribe refer only to action by the city
named official, such as the Vice-President, council, and are inconsistent with the regu-
it would not be Ileemed controlling over the latiohs that the Legislature has established
First Amendment on the ground that the to govern enactment of initiatives. For the
latter is '"general in its scope." Indeed if reasons stated in our discussion of Hurst v.
the constitutional power reserved by the Burlingame, supra, we conclude that sec-
people can be abridged by special statutes, tions 65853-65857 do not apply to initiative
then by @nacting a host of special statutes action, and that the Livermore ordinance is
the Legislature could totally abrogate that not invalid for 'noncompliance with', those
power. . * sections.
Finally, Hurst erred in distinguishing
Dwyer v, City Council, supra, 200 Cal. 505, for vagueness.
253 P. 932, on thQ ground that Dwyer in-
volved a referendum on a zoning ordinance; The trial court found the ordinance
as Dwyer itself pointed out, "if the right of unconstitutionally vague on two grounds:
referendum can be invoked, the corollary (1) that the ordinance did not contain sufli-
right to initiate legislation must be conced- ciently specific standards for 'the issuance
ed.to exist," (200 Cal. at p. 511, 253 P. at p. or denihl of building permits; and (2) that it
934.) ' did not specify what person or agency Was
empowered to determine if the ordinance's
Thus both precedent and established
standards have been met. We disagree
principles .of judicial construction dictate
prithe cncipl usion that Hurconst eructio hodingctate with both rationales and find the ordinance
sufficiently specific to fulfill constitutional
the notice and hearing provisions of the
Zoning Act of 1917 applied to zoning ordi-
nances enacted by initiative. Resting upon - The controversy concerning the' specifici-
the precepts that statutes which are appar- ty of the ordinance centers upon the stan-
ently in conflict should, if rthsonably possi- (lard as to education. The ordinance pro-
ble, be reconciled (see, e. g., Warne v, Hark- hibits issuance of residential building per-
ness (1963) 60 Cal.2d 579, 588; 35 CIl.Rptr. mits until a "satisfactory solution" has been
601, 387 P.2d 377; Pacific Motor Transport evolved to the problem of "Educational Fa-
Co. v. State Bd. of Equalization (1972) 28 cilities"; it defines a satisfactory sblution
Cal.App.3d 230, 235, 104 Cal.Rptr. 558); as otie characterized by "No double sessions
that a statute should be construed to "elimi- in the schools nor overcrowded classrooms
nate . . doubts as to the provision's as determined by the California Education
constitutionality" (In re Kay (1970) 1 Cal.3d Code."
930, 942, 83 Cil.Rptr. 686, 694, 464 P.2d 142, .
150); that the initiative power must bes sufficiently
broadly construed, resolving all doubts in specific; as stated by Professor Deutsch, it
"can be defined by reference to common
favor of the reserved power (see cases citedrence to common
'p. 45 of 135 Cal.Rptr., pp. -- ' --of - practice, since the term is frequently used
P.2d, antq, 'and fn. 6), .we resolve that to refer to a situation wheret-different
Hurst v. Burlingame, 'supra, 207 Cal. 134, groups of students in the same grade are
277 P. '308, was incorrectly decided and . attending the same school at different
therefore overruled." 1 times of thei day because of a lack-of space."
(Deutsch, op. cit., supra, pp..122-23.) The
14. We also disapprove language in the follow- phrase "overcrowded classrooms as deter-
ing decisions which, relying on Hurst v: Cit of mined by the California Edufation:Code,"
Burlingame, supra. assert that general law
cities cannot adopt zoning ordinances by initia- however, is less clear, since.nowhere in the
tive: Johnston v.,City of Claremont (1958) 49 Education Code does there appear a defini-
CM1.2d 826, 837, 323 P.2d 71 (dictum); Tas tion of "overcrowded classrooms."
chner v, City Council9 supra, 31 Cal.App.3d 48, . . *
61-65, 107'Cal.Rptr. 214; People's Lobby, Inc. The City of Livermore, how44yr, points
v. Board of Supervisors (1973) 30 Cal.App.3d out that the ordinance doe.n.ot rifer to a
869, 872-873, 106 Cal.Rptr. 666: Laguna Beach definition of "overcrowded classrooms" con-
Taxpayers' Assn, v. City Council (1960) 187
Cal.4pp.2d 412, 415, 9 Cal.Rptr. 775. '
Cal.2d 125, 222 RP.2d 225; RiednruK' v, Brtson
We distinguish'those decisions which bar the Cald 12, 222 P.2d 225 ; Redman' Bs
usobf the Initiative and referendum in a situs- (9) Ca3.1P d 9 v
tion in which the state's system of regulation Cit of Lncoln (1965) 232'Cal.App 741, 43
Cal.gptr. 306.) !n enacting the ingtaift ordi-
over a matter of statewide concern is so perva-
nance, the voters of Livermore Were tcstng in a
sive as to convert the local legislative body info a th votrs of Lverore were in a
leglslatlve, not an hdministrative!:a,capacity.,
an adninistrative agent of the state. (Housing not an
Authority v. Superior Court (1950) 35 Cal.2d (See Sn Dego Bldg. Contrcts sv. Cy
COuncil, supra.� 13 Cal.3d 205, ;[1]-,4 in ,
550, 219 P.2d 457; Simpson v. Hite (1950) 36. j g c i pri. 1 CI 255
B Cal. . 146, 529 P.2d 570.)
350

tained in the Education Code, but to a case. In Brnxton, we construed Penal Code
determination of that subject. The ]an- section 626.4, which authorized a state col-
guage, it contends-and plainrtiff does not lege or university to bar from its campus
dispute the contention-was intended to re- anyone who had "disrupted" the orderly
fer to resolution 3220, adopted by the board operation of the campus. Defendants ar-
of the Livermore Valley Joint School Dis- gued that the term "disrupted" was uncon-
trict on January 18, 1972, in which that stitutionally vague. We determined, how-
board, pursuant to authority granted it by ever, that the Legislature had intended to
Education Code section 1052, established authorize banishment only of persons who
clear and specific standards for determining had violated other more specific criminal
r whether schools are overcrowded.l5 statutes. Although section 626.4 did not
expressly refer to. such other statutes, we
Rather than interpret the ordinance intcrlrcted section 626.4 to incorporate the
in a manner which would expose it 'to the specific standards set out in those statutes
charge of unconstitutional vagueness, we in order to uphold the constitutionality of
adopt the suggestion of the city and con-. the section. (10 Cal.3d at p. 152, 109 Cal.
strue the ordinance's standard on education Rptr. 897, 514 P.21 697.)
to incorporate the specific guidelines estab-
lished in board resolution 3:220. In so doing Following the course suggested by Brax-
we conform to the rule that enactments. ton, we construe the Livermore ordinance
should be interpreted when possible to tIp- to incorporate the standards for determin-
hold their validity (see San Francisco Uni- ing the overcrowded condition of schools
ficed School Dist: v. Johnson (1971) 3 Cal.3d contained in the school board resolution of.
937, 948, 92 Cal.Rptr. 309, 479 P.2d 669), anti January 18, 1972. So c~nstrued, the o;di-
the corollary principle that courts should nance provides a clear and asc.ertainable
construe enactments to give specific con- educational standard to guide the issuance
tent to terms that might otherwise be un- or denial of a building permit, anti is not
constitutionally vague. (See Bloom v. Mu- void for vagueness.
nicipal Court (1976) 16 Cal.3d 71, 127 Cal. The ordinance's standards relating
Rptr; 317, 545 P.2d 229; In re Kay, supra, 1 to sewage and water supply present .no
Cal.Sd 930, 83 Cal.Rptr. 686, 464 P.2d] 142.) constitutional difficulties. The sewage pro-
Our decision in Braxton v. Municipal vision incorporates the "standards set by
Court (1973) 10 Cal.3d 138, 109 Cal.Rptr. the Regional Water Quality . Control
897, 514 P.2d 697, illustrates the principle Board"; that agency has in fact established
and provides a close analogy to the present specific and detailed standards of water
purification and sewage disposal.' The
15. Board Rlesoliution 3220 prbvides as follows: water supply provision describes a "satis-
"ADEQUAC Y OF SCHOOLS factory solution" as one in which water is
"1. Sufficient instructional space shall be
determined to exist when: not rationed, and "adequate water reserves
a. For elementary schools: for fire protection exist." The existence of
(I) All students can be housed in single ses- rationing is. an objective fact which can he
sion classes in affected schools. ascertained by inquiry to the agencies hav-
(2) At least 900 square feet of functional ing authority to ration." Although individ-
instructional area are available for each
classroom or teaching station. ual.s may differ as to the adequacy of re-
(3) Class sizes average 30 students-or less serves for fire protection, the considered
throughout the District. judgment of the agencies responsible for
b. For secondary schools: fire protection would provide a reliable
(1) All students can be housed within the
capacity of existing schools on regular day guide.
session. Capacity will be determined by ap- . Although we have determined that the
plying State Department of Education crite- ordinance's standards meet constitutional
rla in keeping with Maximum class size.
"2. Minimum support services exist when: requirements of certainty, plaintiff argues,
a. Sufficient shelf and cabinet space is pro- and the trial court held, that the ordinance
vided to accommodate books and equipment is Void because it fails to designate what
normally associated with a classroom. agency or person determines whether these
b. - A faculty workroom exists.
c. Off-street parking for 1/2 cars per teach- e16. A statute otherwise uncertain "will be up-
'ing station Is provided . . .held if its terms may be made reasonably cer-
d. Sufficient playground area and play- tain by reference to other definable sources."
ground equipment Is provided to support out (American Civil Liberties Union v Board of
door play activity. port 011�' (American Civil Liberties y.ion v. Board or
door play activity. Education (1963) 59 Cal.2d 203, 218, 28 Cal.'
e. Sufficient furnitu're and 'equipment for Rptr. 700, 709. 379 P2d 4. 13.)
each classroom to accommodate all students
and teachers. . 17. Professor Deutsch has suggested that ab-:
f, A library is established equivalent to at sence of rationing is not a realistic measure of
least one classroom for each 600 students. the adequacy of water supplies in Northern
"3. School construction and outfitting, in California where seasonill s:arctty 6ften re-
terms of classroom space 'architectural lay- -quires rationing. (Deutsch, op. cit., supra, 15
out, space relationship, outdoor facilitieS, Santa, Clara Law. I. 23.) Plaintiffs in the
utifitles, grounds development, and furniture present case, however, do not contend that the
4, and equipment, shall meet or exceed State standards established in the ordinance are arbi-
Bureau of Education standards." ttary' or Unreasonable.

351

standards have been achieved. We ques- issue unless standards for educational facili-
tion plaintiff's underlying assumption that ties, water supply and sewage disposal have
an ordinance or statute is void if itdoes not been met, but plaintiff presented no evi-
specify on its face the agency that is to dence to show that the ordinance's stan-
adjudge disputes concerning its application; dards were unreasonable' or unrelated to
by such a test most of the civil and criminal their apparent objectives of 'protecting the
laws of this state would be invalidated. In public health and welfare. Thus, we do not
any event, we believe that the Livermore here confront the question of the, ctnstitu-
ordinance, read in the light of the structure tionality of an ordinance which limits or
of Livertore's city government and the bars population growth either directly in
applicable judicial decisions, does indicate express languagi or indirectly by the impo-
the method by which disagreements con- sition of prohibitory standards; 'we adjudi-
cerning the ordinance's standards are re- cate only the validity of an ordinance limit-
solved. ; / ing building permits in accord with stan-
The Livermore ordinance establishes dards that reasonably measure the gdequa-
standards to govern the issuance or denial cy of public services.
of residential bailding permits. These stan- As we shall explain, the limited
dards inust be directed in the first instance record here prevents us from'resolving that
to the city building inspector, the official constitutional issue.. We deal here with a
charged with the duty of issuing or denying case in which a land use ordinance is chal-
such permits. Since the duties of this offi- lenged solely on the ground that it asserted-
cial are ministerial in character, his deci- ly exceeds the municipality's authority un-
sions can be reviewed by writ of mandamus. der the police power; the challenger es-
(McCombs v. Larson (1959) 176 Cal.App.2d chews any claim that~the ordinance.discrim-
105, 107, 1 Cal.Rptr. 140; Palmer v. Fox inates on a basis of race or wealth. Under
(1953). 118 Cal.App.2d 453, 258 P.2d 30.) such circumstances; we view the past-deci-
Thus the ultimate decision as to compliance sions of this court and the federal courts as'
with the standards will be rendered by the establishing the following. siandard:' the
courts. (See generally Hagman et al., Cal. land use restriction withstands constitutiona
- Zoning Practice (Cont.Ed.Bar 1969) � 12.4.) al attack if it is fairly debatable that the
restriction in fact bears a reasonable rela-
4.,I .On the limited record before us, plain- tion to the generalfwelfare. For the guid-
tiff'cannot demonstrate that the Liver- ance of the trial court we point out that if a
more ordinance, Is not a constitutional restriction. significantly affects residents of
exercise of the city's police power. surrounding communities, the constitution-
Plaintiff urges that we affirm the trial ality of the restriction must be measured by
court's injunction on a ground which it its impact not only upon the welfare of the
raised below, but upon which the trial court enacting community, but upon the welfare
did not rely. Plaintiff contends that the of the surrounding region.. We explain the
ordinane., proposes, and will cause, the pre- process by whic, .the court can' deteitnine
voitinon of nonresidents from migrating to whether or not such a restriction reasonably
lIArhrore, and that the ordinance there- relates to 'the regional welfare. Since the
fore attempts an unconstitutional exercise record in the present case is limited to the
of the police power, both because no oom- pleadings and stipulations, and is devoid of
pelling' state interest justifies its infringe- evidence concerning the probable impact
ment .ipon the migrant's constitutionally and duration of the ordinance's restrictions,
protected right to travel, and because it we conclude that we cannot now adjudicate
exceeds the police power of the municipali- the constitutionality of the ordinance.
ty?8 Thus we cannot sustain the tlhil court judg-
The ordinance on its face imposes no ab- ment on the ground that the ordinance ex-
solute prohibition or limitation upofi popula- ceeds the city's authority under the police
tion growth or residential construction. It power; that issue can he resolved only after
does provide that no building permits will trial:
We turn now to consider plaintiff's argu-
18. Plaintiff does not contend that the ordinance ments in greater detail: Seeking to capital-
constitutes an inverse condemnation of proper- izc upon" the absence of an evidentiary
ty (compare Associated Home Builders, etc..
Iac. v. City of Walnut Creek (1971) 4 Cal.3d record, plaintiff contends that the chal-
833, 94. Cal.Rptr. 630, 484 P.2d 606). that. it lenged ordinance must he subjected to strict
unreasonably burdens Interstate commerce judicial scrutiny; that it can be sustained
(compare Constructlon Ind. hAssn., Sonoma only upon a showing of a compelling inter-
:.Cly. .v, City of Petaluma (9th Cir, 1975) 522
.'F2d '897, 909) ot that it denies the equal pro- est, and that the city has failed to make
teetlon of the laws either to landowners (corn- that showing.
parie Town of Los Altos Hilq v. Adobe reek . Many'writers have contended that exclu-
Propertles, Inc. (1973) 32 Cal.App.3d 488. 108
,Cal.Rptr. 271) or to migrants (compare Ybarray land use ordinances tend primarily
v. 'Cty of Town, of Los Altos' lills (91h Cir. to exclude racial minorities and the poor,
1974) 603 F.2d 250). ' and on that account should be subject to

352

strict, judicial scrutiny. (See e. g., Davidoff Both the United States. Supreme Court
& Davidoff, Opening t1w Suburbs: Toward and this court have refused to apply the
Inclusionary [,andi U.se Con trols9 (1971) 22 strict constitutional test to legislation, such
Syracuse L.Rev. 609; Sager, Tight Littke am the present ordinance, which does Fiat
Isl1ands:. 1,xvIusionary Zoning, Equal Pro- punalize travel and resettlement but merely
tection, anti tie Indigent (1969) 21 Stan.L. makes it more difficult for the outsider to
Rev. 767; Note, op. cit., supra, 26 Stan.L. establish his residence in the place of his
Reuv. 585, 597, fn. 45 and authorities there chuoosing.2' (See Village or Belle Te.rre'v.
cited; Note, The Brqual Protection Clause Borans (1973) 416 U.S. 1, 7, 94 S.Ct. 1536, 39
and Exclusionary Zoning after Vail erra L.Ed.2d 797; Ectxr v. Cuity. of Torrance
and Dandridge (14971) St Yale L.J. (it.) (1973) 10 Cal.Rid 129, 135, 1119 Cal.1ptr. 849,
'fhese writers, however, are concerned p)ri- .514 P.2d 433; see also MAet'rthy v. Mhin-
manly with ordinances which ban or limit, delphriji (1976) 424 U.S. 645, 96 S.Ct. 1154,1 47
less expensive forms of housing while per- L. Ed.2d 366; Consl ruction lad, Ass'n ., igoijo-
mnitting expensgive single family residences mna Cormnty v. City of Petalumna, supra, 522
on large lots. The Livermore ordinance is F.2d 897, 9061�907, fn. 131, Note, 50 N.Y.U:
not made fetom this mold; it impartially L.F. (1975) 11l6jI, 1168.) The 'only contrary
bans all residential construction, expensive authority, thle (lecision of the federal dis-
or inexpensive. Consequent~ly plaintiff tit trict court in CJonstruction Ind. Asj,`, Sono-
bar has eschewed reliance upon any claitV ma Cty. v. City of Petalunua (N.D.Cal.1974)
thait the ordinance discriminates on a basis 3751 F.Supp. 574 holding, that an ordinance
of race or wealth. limiting residential construction must be
Plaintiff's contention that the Livermore supported by a compelling state intcrdst has
ordiancemus be e~te b y a stndar ofnow been reversied by the Court of Appeals
ordinace scustiy he teste be sustainead on l for the Ninth Circuit. (Construction Ind.
strit srutnyand ca besusaind oly. Ass'n, Sonomna Cty. v. City (if Petalumia,
upon a showing of a compelling state. inter- spa 2 .d87 et e. 2 ..94
est, thus rests solely on plaintiff's assertion sura 522 F.2 1 89 7, cErt.2de. 424 .S 94
that the ordinance abridges a constitution- 96SC.14,7 E.232)
ally protected right to travel. As9 we shall' Most zoning and land use ordinances af-
explain, however, the indirect burden im- fect population growth and density. (Seoa
posedl on the right to travel by the ordi- Construction lnd. Ass',,, Sonoma Cly. v.
miance does not warrant applicatin~nof the City of Petaluma, supra, 522 F.2d 897, 906;
plaintiff's assertedl standardof "copmpelling Note, op. cit., supra, 26 Stan.L.Rev. 585,
interest." 19 606 -607, fn. 91.) As commentators have
b ~~~~~~~~~~In asserting that legislation which bur- observed, to insist that such zoning laws are6
ilens a right to travel requires strict scruti- invalid unless the interests supporting the
ny, and can lie sustainesl only upon proof of exclusion are compelling in character, andl
vompullihg need, plaintiff relies on recent cannot lie achieved by an alternative meth-
decisions of this court (In re King (1970) 3 od, would result in wholesale invalidation of
r ~~~~~~~~~Cal.3d 226, 90 Cal.1ptr. 15, 474 P.2d 983) land use controls and endanger the validity
and the United States Supreme Court (Mc- of city and regional planning. (See Note,
mof'ial Hospital v. Marivopa County (1974) op. cit., supra, 26 Castings L.J. 849, 854.)
416 U.S. M5, 94 S.Ct. 1076, 39 L. BI-2d 3016;' " Were a court to hold that an
Dunn v. 'B)umstein (1972) 405 U.S. 330, 92 inferred right of any group to live.wherever
-S..Ct. 995, .31 L.Ed.2d 274; Shapuiro, V_. it chooses might not be abridged 'without
Thomnpson (1969) 394 U.S, 618, 89 S.Ct. 1322, some compelling state interest, the law of
22 L.Ed.?.d 6100). The legislation hold inval- zoning would be literally turned upside
id by those decisions, however, directly bur- down; presumptions of 'validity'would be-
dened the right to travel by distinguishing come presumptions of invalidity said tradi-
lietween nonresidlents or newly arrived res2i- tional police powers .of a state would be
dents on the one hand and established resi- severely circumscribed." (Comdment, Zon-
dents on the other, and imposing penalties' ing', Communes and Equal Protection, JR73
or disabilities on the former group.30 Urban L.Ann. 319, 324.)
Is. For analysis of tile constitutional 6rigins of We conclude that the indirect bur-
the right to travel, see Note, Municipal SeilfDe- den upon the right to travel,'imposed by-the
termination; Mlust Local Control of Growth Livermore ordinance does not 6all for strict
Yield to Travel Rights? (197.5) 17 Arl;.L.Rev. judicial'scrutiny. The validity of the chal-

20, In e King struck down a penal code prolvi'
sion which declared that failure of a father to see generally Comment., A S'trict Scrutiny of
support his child was at misdemeanor when the t he Right to Travel, (1975) 22 UCLAL Ret'.
father was a California resident, but decreed 1 l20.)
that It was a felony when the father resided out 21. For discussion ofthe application ofthe right
of tie aslae. The United States Supreme Court to travel to land use regulations see, Coitnment,
cases overturned residency requirements im- The Right to Travel: Another. ConstItutional
posed to restrict elgigbility for medicaf care Standard -for Local Land Use Regulations?
(Memorlia Hospital V. Maricapa County), vot- (1072) 39 U.Chl.L.Rev. 612; Note, The Right to
Ing (Dunn V. Diem stein'), or welfflre (Shobiro V; Travel and Exclu sionary Zoning (1975) 26 1-las-
Thornpson), For analysis of these decisions, tings L.J. 849.

3 53

lenged ordinance must be measured by the 271 andi. cases there cited.)
more 'iberal standards that have tradition- In deciding whetber a challenged
ally tested the validity of.land use restric- ordlinanice reasonably relates to the *1iuhlic
tions enacted untler the municipal police welfare, the courts recognize 'that such ordi-
power.~~~~~~~~ nances are presumedl to be constitutional,
This conclusion brings uts to and come before the court with every In-
plaintiff's final contention: that'the Liver- tnodment in their favor. (Lockard v. City
more ordinance eXceeds' the authority con- of Los Angelos, supra, 33 Cad.2d 453, 460,
forred Ofon the -city under the police power. 202 V.2d :38.) "The courts may tliffer with'
The constitutional measure by which we the zoning authorities as to the 'necessi~.y or
judgethe vlh~iy oalndueriace propriety of an ciaetmene', but so long as it
that Is assailed as Exceeding municipal, au- remains a 'question upon which reasonable
thority under the police power dates in Cali- minds might differ,' there will be iia judi-
fornia from the lan~dmark decision'in Miller cial interference with the municipality~m de-'
v. Board of Public Works (1925) 195 Cal. termination of policy." (Clemons vt. City of
477, 234 P. 381. Upholding A Loi Angeles Los A4ngek's (1950) .36 Cal.?(d 95, 98, 222
ordinance which excluded conlimercial and P.2d 439, 441.) In' short, as stated by the
apartment uses from '-certain residential Supreme Court in Euclid v. Ambler Co.,
zones, we declared that an ordinance ~re- urIftevldy. .heaiy
trtigland use was valid if it had a "real dklbatable, the leg'ishi~tive judgment must be
or su bstantial relation to the public health, all1owed to control." (272 U.S: 3115, 388, 47
safty, 'morals or general Welfare. (15 14 ,7L..30)
Cal. at p. 490, 234 P. at p. 185.) A year '
later the United States Supreme Court, in Rvcenir decisions of the ,United States Sta-
the landmark case of Euc lid v. Ambler Co. preme, Court and] thes Court or Appeals fo?
(1926) 272 U.S. 305, 47 S.Ct. 114, 1L.Ed. the Ninth Circuit have applied this liberal
303, adopted the same test, - holding that standar'd and,, deferring to legislative judg-,
befor~e it zoning ordinance can be held un- inent, have upheld ordinances attacked as
constitutional, "it must be said ex)clusionary. InI Village-of Belle Terre v.
that lits] provisions are clearly arbitrary ilornas, start, 416 U.S. 1, 94 S.Ct. 1536, 39
and unreasoniablet, having no substantial re- I~lJd.2d 797, them court sustained an ordi-
lation to the public health, safety, miorals, oun11ce which banned all multiple family
or gtneral welfare." (272 U.S. at p. 35 47 housing. The majority opinion Ii# Justice
S.C(. at p). 121.) Later California decisions IDougbts found a rational basis. for the ordi-
confirmed that at land use restriction Ies, nance in- he community's dvsirv to preserve
within the public power if it has a "reasona- a pleasant enviro~ment; "[tjhe police pow-
Wde relation to the public w('lfare." (Lock- *er," he asserted, "is not confined to the
urtl v. City of Los Angeles (1949) 33 Cal.2d elimination-of filth, stenchl, and unhealthy
453, 461, 202 11.2d 3~, 42; Ila~nlr v. Town of places. It is ample to lay out zones where
Rloss (1963) 59) Cal.2d 770, 783, 31 Cal.Rptr. family valutis, youth values,, and tbe bless9-
335,,.182 11.2d 37.5; see Town of Los Altos ings of quiet seclusion and clean air make
Hills v. Adobe Crovk P1ro~iwrtics, Inc., supra, the area at sanctuary for peolile." (416 U.S.
32 Ca],App.3d 488, 508 509, 108 Cal.Riptr.'-. at p). 9, 94 SCt. at p. 1541.) In dissent,
Justice Marshall argued that the village's
22. In Village of Belle Terre v. Boraas, supara exclusion of groups of three or more unre-
426 U.S. 1, 94 S.Ct. 15936.359 L.Ed.2d 797. appel- lated liersons from living in a singl~ resi-
lants assailed an ordinance which prohibited dlence violated protected rights of privacy
thrce or more unrelated persons from living in adasoIato.H ged oeeta
at single household on the ground, among oth-ad miain.Hagehwvr tt
ers, that it violated appellants' right to travel. .thec village could properly enact, ordinances
Stating that the ordinance "is not aimed at to control population xdensity *und-,restrict
transients" (p. 7, 94 SCI. 1536), the majority uncontrolled growth so long as it (lid not
rejected that contention, and applied a rational
relationship test to uphold the chall6nged ordi- abiridge .fundamental rights, and that, in
nance. Justice Marshall, dissenting, stated reviewing such ordinances the courts shtiulil
that a municipality may properly undertake to defer, to the legislative judgment. (See 416
restrict uncontrolled growth and to main tain a U.S. a p 3 92,9 .C %.
community attractive to families. lie asserted, a p 0 0~,0S~A.10.
however, that the Belle Terre ordinance in In Construction industry Ass'n, Sonoms
question infringed appellants' fundAmnental CtyV. V. city of Petaluma, .YujoraI, 52. F.2td
rights of association and privacy, and thus 897,' thin Ninth Circuit Couti-o of Appeals
must be judged by the stricter compelling inter- uphedlda city ordinance fixing it housing
est, test.
Thus both the majority and. the dissenting development growth.rtste of boo units We
opinion in Boraas support our conclusion that year. Relying largely,-o nit 1k Terrm v.
an ordinance which has the, effect of limiting Rorta~s, qujpra, 416 U.S. 1, 94 SG-. 15,16, 39r
migration to a community does not necessarily L,.Ed.2td 797, the court conclud ed that "the
abridge a fundamental right to travel, and thus .concept of public welfare is sufficiently
should not be -examined by the compelling in- P 1y
terest standard unless it infringes some other broad to uphold Petaluma's desire to pre-
fundamental right or discrimninates on a sus- serve its small -town character, its open A
pect basis. space and low density of popultition'-and to

354

grow at an orderly and deliberate pace." We- therefore reaffirm the established
(522 F.2d at pp. 9(08 909.) The Supreme constitutional principle that a focal land use
Court denied certiorari. (424 U.S. 934, 96 ordinance falls within the authority of the
S.Ct. 1148, 47 1,.Ed.2d 342.) police power if it is reasonably related to
a We conclude from these federal decisions the public welfare. Most previous decisions
that when an cxclulsionary ordlinance is applying this test, however, have involved'
challenged under the federal dtue Iprocess ordinances without substantial effect be-
clause, the standard of constitutional adju- yond the municipal boundaries The
dication renmains that set forth in EouliJ v. Ipresent ordinance, in contrast, significantly
Amlbler Co., suapr 272 U.S. 3fifi 47 SI.(t. affects the interests of nonresidents who
114, '71 LEd. ,03: if it is fairly debatal)le are not represented in the city legislative'
that the ordinance is reasonably related to body and cannot vote on a city initiative.
We therefore believe it desirable for the
the public welfare, the ortlinance is conlsi-
tutional. A numbefr eft recenta dcisiorns guidance of the trial court to clarify the
from courts qfr other states, however, have application of the traditional police power
declined to accord the traditional deference test to an ordinance which significantly af-
to legislative .judgment in the review of fects nonresidents of the municipality.
exclusionary ordinances, and ruled' that When we. inquire whether an ordinance
communities lacked authority to adopt such reasonably relates 'to the public' welfare,
ordinances.. Plaintiff urges'that we apply inquiry should begin by asking whose wel-
the standards of review employed in those fare must the ordinance serve. In past
decisions in passing upon the instant ordi- cases, when discussing ordinances without
nance. significant' effect beyond the municipal
The gases cited by plaintiff, however, boundaries, we have 'een content to assume
cannot serve as a guide to resolution of the that the ordinance need only reasonably
present-controversy. Not only do those de- relate to the welfare of the enacting munic-
cisions rest, for the most pagit, upon princi- ipality and its residents. But mun;cipalities
pies of state law inapplicable in Califoriia, are not isolated islands remote from the
.but, unlike the present case, all involve needs and problems of the area in which
brdinances which impede-the ability of low they are located; thus an ordinance, super-
or moderate income persons to immigrate to ficially reasonable from the limited'view-
a community but permit largely unimpedted point of the municipality, may be disclosed
entry by wealthier persons.2 as unreasonable when viewed from a larger
perspective.
23. The most recent of these decisions, South
Burlington Cty. N.A.A.C.P. v. Tp. of Mt. Laurel These considerations impel 'us to
(1975) 67 N.J. 151, 336 A.2d 713, invalidated a the conclusion that the proper conslitution-
township zoning ordinance which discriminat- al test is one which inquires whether the
ed against low and moderate cost housing.
The court based its decision upon an extensive ordinance reasonably relates to the welfare
trial record which convinced the court that of those whom it significantly affects. If
deference to local legislative bodies would-im- its impact is limited to the city boundaries,
pede measures it found essential to the regional
welfare. In National Land & Investment Co. v. the inquiry may be limited accordingly; if,
Kohn (1965) 419 Pa. 504, 215 A.2d 597, the as alleged here, the ordinance may strongly
Pennsylvanla Supreme Court, striking down a' influence the supply and distribution of
four-acre' minimum lot requirement, indepen-
dently determined that the zoning ordinance. housing for an entire metropolitan region,
would not promote the general welfare; as we judicial inquiry must consider the welfare
explain in text, California courts do not 'claim of that region.2
the authority to invalidate ordinances that they
believe undesirable so long as it is fairly debat- As far back as Euclid v. Ambler Go.,
able that the ordinance is reasonably related to courts recognized "the possibility of cases
the public welfare. 'Appeal of Kit-Mar Build-
ers, Inc. (1970) 439 Pa. 466, 268 A.2d 765 fol- where the general public interest would so
lowed National Land in striking down a two- far outweigh the interest of the municipali-
and-three-acre zoning law' .A!ipeal of'Girsh ty that the municipality would not be al-
(1970) 437 Pa. 237, 263 A.2d 395 invoked the lowed to stand in the way." [272 U.S. 365,
doctrine that a community cannot totally ex-
dlude a lawful enterprise, a doctrine rejected in 390, 47 S.Ct. 114, 119, 71 L.Ed. 303.) More
California. (See Town of Los Altos Hills 'v. recently, in Scott v. Indian Wiills (1972) 6
Adobe Creek Properties. Inc., supra, 32 Cal.
App.3d 488, 108 Cal.Rptr. 271.) The two-acre more Planning Com'n v. Victor Development
zoning law in Board of County Sup'rs of Fair- Co (197) 261 Md. 387, 275 A.2d 478;, each v.
fax County v. Carper (1959) 200 Va. 653, 107 Planning and Zoning Commission (1954) 141
S.E.2d 390, was held invalid as an arbitrary Conn. 79, 103 A.2d 814) merely hold that the
attempt to exclude low Income persons from zoning ordinance.in question exceeds the pow-
the western two-thirds of the county'. Bristow era granted local zoning authorities under the
v. City of Woodhaven (1971) 35 Mich,App. 205, laws of those states.
192 N.W.2d 322, and other Michigan cases cit-
ed rest on a unique Michigan doctrine which 24.. In ascertaining whether a challenged ordi-
presumes'the uncohStitutionality of ordinances nance reasonably relates to the regirnal'wel-
restricting certain favored pseS of land. The fare, the extent and bounds of the region signif-
A other 'cases cited by plaintiff (Albrecht Realty icantly affected by the ordinance should he
Company v. Town of New Ca&tle (N.Y.Sup.Ct. determined as a question of fact by the trial
1957) 8 Misc.2d 255, 167 N.Y.S.2d 843; jalfti. court.

355

Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137, assert a vital interest in limiting immigra-
we., stated that "To hold that tion to their community,, Outsiders search-
defendant city may zone the land within its ing' for a place to -live in the face of a
lbortder without any concerni for [nonresi- growing shortage of adlequate housing, andl
tients) would indeed 'make a fetish out of hoping to share in the perveivedf benefits of
invisib~le mu nic ipal boundary lines and a suburban life, MAY present, a countervailing
mockery of the principles of zoning."'" (P. interest opposing harriers to immt~igration.
SW~, 99 Cal.Rltr. p. 749, 492 P.2d p. 1141.) Hvn dniidadwihb h
The Now Jersey Supreme Court summed up cnptn neettefnlse ~t
the pirinciple and'explained its doctrinal ba- cometering hetheres the frinalndte in lgto
sis: "[tis fundamental and not to be d trmnwehrte diaci'nlgt
forgotten that the zoning power is a police of its probable impact, representi a reason-
the sate n~l te loal auhoriy is able accommodation of the competing inter-
power of es~~~~~~~cts.26 We do not hold that 'a court in
acting only as a delegate of that power andinurgwhteanodacersnay
is restricted in the same manner as is the inquirtoing rilga whelfae, canno odinacerea al
sttate. So, wvhere regulation does have a rltst h $goa efrcno ee
subsat~tal eternl imactthe elfae ~ to the judgm~nt of the mullicipality's legis-
the- state's citizens beyond the borders of ltv oy~.u judicial adicto.Teordinnce' nost
the particular muniicipality cannot be disre- juia1bdcto. Te rincems
and mst b recgnizd an seretl' have a real and substantial relation to the
garded an'nsb eonzdadsre]" publi~c welfare. (Miller v. Board of Public

(if. BLurelnto Cyr, 336AA.2d 713v. 726.) o f Works, supra, 195 Cal. 477, 490, 284 P. 381.)
Mi. aure, sura, 36 .2d 13,. 726)25 There must be a reasonable basis in fact,
tria 'exp lain the, process bay which a not in fancy, to support the legislative de-
rilcutmay deemn!whether a chal- 'termination. (Consolida ted Rock Products
lenged restriction reationably relates to the C o. v. City of Los Angeles (1962) 57 CAIN2
regional welfare, The first step in that 515, 522, 20 Cal.Rptr. 638, 370 P.2d 342.)
analysis is to forecast the probable effect Although in many cases it will be "fairly
And duration of the! restriction. In the. in- debatable" (Eruclid v. Ambler Co.,,supra, 272
stant case, the Livermore ordinance posits a U.S. 365, 388, 47 S.Ct. 114, 71~ b.)Ed. 303)
total ban on residential construction, but that the ordinance reasonably relates to the
one which terminates as Noon as public fi t regional welfare, it cannot be assumed that
cil litks reach specificil standardls. Thus' to -a lahd use ordinance carn never be iijvalida-
evaluate the iipc ftersrcin h ted as an. enactment in excess of the police
court must ascertain- the extent to which power.
public facilities currently fall short or the The~ burden rests with the party
specifAied tandards, mu'st inquire whether challenging the constitutionality of an ordi-
the city or alupropriate regional agencies11 nance to present the evidence and documen-
have undertaken to construct !lecdol im.i1 tation which the court Will require in -under-
proVemenits, And must dletermine~ wloen tile taking this constitutional analysis. Plain-
improvements are likely to he completed]..
The second step is to itlentify the compet- 26. For example, in upholding a city ordinance
ing intrests ffecte by th restrctionrequiring a~subdivider to dedicate land for park
ing interesO affected b y the resrito.pki'oses, we stated in Associated Home Buifld-
We toch inthis rea eep scial ntag- ers, etc., Inc. v. City of Walnut C'reek (1971) 4,
nism%. We allude to the conflict between Cai.3d 633, 94 Cal.Rptr. (330; 484 ,P.2d, 606 that
the environmental protectionists .and . the the risk that Increased development costs could
egalitarian humanists; a collision between exclude economiically depressed persons could
be '~balanced agalnst tht- Phenomenon aU the
the forces that would save the benefits of appalling rapid disappearance of open areas in
nature And those that would pre-serve the and around our dkities."' (4 01al.3d at p. 648. 94
opportunity of people in keneral to ~�ettle. .a1'Rpir., ai p, 1642, 484 V1.2d at~p. 61 it
Suburban residents who seek-.to overcome 27. The reconciliation and accommodation of
problemrs of inadequate school'; anti public the competing Interests can reasonably take a.
facilities to sectire "the blessing of quiet variety of forms, depending upon the needs and
seclusion iind clean air" And to "make then characteristics of the community arid its Sur.
rounding region. Courts have upheld restice-
area a Hancfltuary for people" (Villigc of tive zoning ordinances of limited dthtation (see
814ll. Terre V. Rornam, sulml~, 416 U.S. 1, 9, Builders Assn. of.. Santa Clara-Santa Cruz
94 SC,1-614t 9LFl2d77.myCounties v. Superior Court (1974) 13 Cai.3d
S.Ct. 1536, 541, 39 L.Ed2d 797) may225, 1 18 CaliRptr. 158. 529 P.2d 582 (app'. dis-
25. See also Golden v. Planning Board (if Town missed, - U.S. -.--. 96 S.Ct. 3184, 49 L.Ed,2d
of Ram~apo (1972) :0 N.Y,2d .359, 334 NN.YS.2d -(1976); Metro Realty v, County of El Diora.
138, 150, 285 N.E.2d 291, 300; Walsh, Are do (1963)1222 Cal.A pp.2d '508, 3 Cal.Rptr.
Local Zoning Bodies lacquered by the Consl itu. 480). an ordinance aimed at ~ivertihg growth t6
Vion to Consider Regional Ne~ds? (1971i) 3 less impacted areas of a city (Builders Assn. of
Corm.L.Rev. 244; Williams & Doughty, Studies Santa Clara.Ssuita Cruz Counties ~.' Superlio
In feeal Realism;, Mount Laurel, Belle Terre Court. supra), and phased. grokth ordinances
and Berman,(1975) 29 Rutgers L.Rev. 73; Note (Fee Construction Ind. AsSMi, Sononi C'ty. V.
op. cit. so pro, 26 Stan.1..Rev. 585, 606 608; City of Petalumna, supra, 52 2 IF.2d 897~ Golden
Stanford ll~yvfronmentai Law Society, A Hand: V. Planning Board af To"' of Ramn~a (1972)A
book for Controlling Local Growth (1973) page 30 NN.2d 359. 334 N.Y.S.2d '13, 285 W.E ?d
16. 291.)

356

tiff in the present case has not yet attempt- the municipality 'and the surrounding re-
ed to shoulder that burden. Although gion.
plaintiff obtained a stipulation that as of The judgment of the superior court is
the date of trial the ordinance's goals had reversed, and the cause remanded for fur-
not been fulfilled, it presented no evidence ther proceedings consistent with the views
to show the likely duration or effect of the expressed herein
ordinance's restriction upon building per-
mits. We riust presume that the City of CLARK, Justice (dissenting)
Livermore and appropriate regional agen- I dissent.
tcies will attempt in good faith to provide The zoning provisions of our law applica-
that community with adequate schools, sew- ble to general law cities and the initiative
agel dislpoisal facilities, and a sufficient provisions are clearly in conflict as recog-
water supply; plaintiff; however, has 'not nized in Hurst v. City of Birlingame (1929)
presented evidence to show whether the 207 Cal. 134, 277 P. 308. A long line of
city and such agencies have undertaken to decisions by this court and the Courts of
construct the needed improvements or Appeal has followed Hurst. (E. g., John-
. when such improvements will be completed. ston v. City of Claremont (1958) 49 Cal.2d
Consequently we cannot determine the im- 826, 836-837, 323 P.2d 71; Simpson v. Hite
pact upon either Livermore or the sur- (1950) 36 Cal.2d 125, 134, 222' P.2d225;
rounding region of the ordinance's ieatric- Taschndr v. City Council (1973) 31 Cal.
tion on the issuance of building permits App.3d 48, 61 et seq., 107 Cal.Rptr.. 214;
pending achievement of its goals:- Laguna Beach Taxpayers' Assn. v: City
With respect to the competing interests, Council (1960) 187. Cal.App.2d1 412, 415, 9
plaintiff asserts the existeice of an acute Cal.Rptr. 775; see San Diego Bldg. Contrae-
housing shortage in the San Prancisco Bay tors Assn. v. City Council (1974) 13 Cal.3d
Area, but presents no evidenice to document 205, 215, 118 Cal.Rptr. 146, 529 P.2d 570.)
that shortage or to relate it to the probable Until today, it was held that because of the
effect of the Livermore ordinance. De- conflict general law .cities' zoning ordi-
fendants maintain that Livermore has se: nances were not subject to enactnient by
vere problems of air pollution and inade- initiative. The rationale was' the statute
quate public facilities which make it reason- conferring upon the legislative body the
able to divert new housing, at least tempo. power to enact zoning prescribes the enhact-
rarily, to other communities but offer no ment method thereby establishing the
evidence to support that claim. Without an measure of the power to enact; where a
, evidentiary record to demonstrate thevalid- state act specifies the steps to be followed
ity and significance of the asserted ihtet- by the local body in enacting legislation, the
ests, we cannot determine whether the in- initiative could not be used unless the steps
stant ordinance attempts a reasonable ac- were taken, and the steps required for zon-
commodation of those interests. ing ordinances could not be followed within
the initiative process. (Id.) The reasoning
In short, we cannot determine on the the initiative pro) The r
is compelling and indeed conclusive; I
pleadings and stipulations alone whether would not overrule Hst and thenumerous
this ordinance reasonably relates to the cases following it
general welfare of the region it affects.
The ordinance carries the presumption of When we look at constitutional and statu-
constitutionality; plaintiff cannot oveicome tory provisions governing zoning, related
that presumption on the limited record be- matters, and initiative process, the conflict
fore us. Thus the judgment rendered on is apparent.
this limited record cannot be sustained on ZONING
the ground that the initiative ordinance
falls beyond the proper scope.qf the police As pointed out in Hurst, a geeral law
power. city is limited in the exercise of its powers.
by the Constitution and the general laws.
5. Conclusion. (207 Cal. at p.'138, 277 P. 308; see Bishop' v.
City of San Jose (1969) 1 Cal.3d 56, 61, 81
Livermore ordinance is hieither invalid on Cal.Rptr. 465, 460 P.2d 137.) The power of
a general law city to zone is derived from
the ground that it was enacted by initiative
article XI, section 11: "A' county or city
nor unconstitutional by reason of vague- may make and -enforce within its limits all
ness. The more difficult question whether Ibcal, police, sanitary, and other ordinances
the measure is one which reasonably relates and regulations not in conflict with general
to the welfare of the region affected by its laws." (Italics added;' Miller v. Board of
exclusionary impact, and thus falls within Public Works (1925) 195 Cal. 477, 483, 234 P.
the police power of the city, cannot be 381; People v. Johnson (1955) 12 al.
decided on the limited record here. That App
App.2d. 1, 5, 277 P.2d 45.)'
issue can only be resolved by a trial at
which evidence is presented to document ,1. Beginning in 1879. the quoted language has
,the probable impact of the ordinance upon . ippeared in our Constitution with nonmaterial

357

The Legislature has specifically auth6riz- make a written finding of no significant
ed general law cities and counties to adopt impact before enacting zoning ordinances if
zoning ordinances, enumerating many of the report is not prepared. (No Oil, Inc. v.
the types of zoning regulations., (Gov.Code, City of Los Angeles (1974) 13 Cal.3d 68, 79
�� 65800, 65850.) Government Code section et seq., 118 Cal.Rptr. 34, 529 P.2d 66.)
65802 provides that the procedures' for en-
actment of zoning laws are exclusive: "No
provisionsof this code, other than the provi- Article IV, section 25 of our Constitution
sions of this chapter, and no provisionis of provides: "Initiative and referendum pow-
any other code or statute shall restrict or ers may be exercised by the electors of each
limit the procedures provided in this chap- city or county under procedures that the
ter by which the legislative body of any Legislature shall provide." Proponents of
county or city enacts, amends, administers, an 'initiative in a city must give notice
or provides for the administration of any thereof and then circulate petitions to vot-
zoning law, ordinance, rule or. regulation." ers. (Elec.Codel �� 4000-4009.)' If the req-
The Legishlture has expresily provided uisite number of signatures are obtained,
that a zoning ordinance ehanging property the ordinance is presented to the legislative
from one z6ne Wto another or imposing or body which may adopt it without'change.
removink any of the numerous regulations (Elec.Code , �� 4011, 4012.) If within- 10
set forth in Government Code section 658,50 days it fails to adopt, the proposed ordi-
shall be. adopted in the manner specified in nance nust be submitted to the voters at a
sections 65854 to 65857'inclusive. (Gov. special or general election. (Id.) If the
Code, � 65853.) legislative 'body adopts the proposed ordi-
nance without submission to the voters or if
The procedre rovides for upon submission a majority of the voters
notice and hearing by the planning commis-e
sion; a written report and recommendation approve, the ordiance goes Into
effect, and the ordinance may not be re-
by the planning commission Including speci-
ficatlon of the relationship of the proposed pealed or amended except by vote of the
ordinance to general and specific plans, People unless provision is otherwise made in
public hearings by the city council or board the original ordinance (Elec.Cdde, � 4015.)
of supervisors after notice, and a further
report by' the planning commission in the
event of modification by the legislative The zoning law and the initiative law
body. (Gov.Code, �� 65854-.65857.) Inter- conflict in 'a number of respects.. Funda-
im ordinances may be adopted as urgency mentally, the zoning statutes contemplate
measures prohibiting uses in conflict with a that to achieve orderly and wise land use
contemplated zoning proposal but only by regulation any change in zoning ordinances
four-fifths vote and only for a short period is not to le made until the experts in the
of time. (Gov.Code, � 65858.) Zoning ordi- field have had an opportunity to evaluate
nances are required to be consistent with the effects of the change after noticed
the general plan. (Gov.Codo, � 65860.) Ex- hearing and report. Further, the zoning
tensive provisions regulate adoption and( law contemplates that in evaluating zoning
amendment of the general plan: (Go'v: changes, the legislative body must refer
Code, �� 65300-65552.) There is also provi- modifications not covered by the initial re-
siot1 for variances. (Gov.Code, � (65906.) port to the planning commission. .Such re-
Although the zoning power is legislative, ports as to the instant ordinance would
administrative duties in addition to the ones show, for: example, which lots are zoned
in the above code sections have been im-' solely for residential use and might indicate
ported into the zoning process. Legislative the potential liability, if any, of the city in
bodies adopting zoning ordinances are not inverse condemnation.2 The reports would
free to merely follow the interests of their prohably indicate the anticipated effect of
constituents but must give consideration to the ordinance on surrounding communities.
the interests of residents of nearby commu- Preparation of reports might also lead to
ities. (Scott v. City of Indian Wells (1972) clarification; for example, it is un'clear
6 Cal2d 541, 546- 549, 99 Cal.Rptr. 745, 492 whether the ordinance is limited to permits
P.2d 1137.) Recently, this court held that for new residences or extends to permits for
the California Environmental Quality Act additions to and modifications of existing
(Pub.Resourecs Code, � 21050 et seq.) ap- residences. The environmental impact re-
plied to zoning ordinances, that environ port might show potential increases in ato-
port might show potential increases in auto-
mental impact reports must be prepared in
cases of significant environmental impact, 2. The issue of inverse condemnation is not
and that legislative bodies are required to raised in argument but the issue is raised by
the adoption of the ordinance. (Cf. Goldblatt
changes. The only' difference in language be- v. Hcempstead (1972) 369 U.S. 590, 82 S.Ct. 987,
tween the current section and former article 8 L.Ed.2d 13'0; Penna. COal Co. v. Mahon
XI, section 11, is that in lieu of the opening (1922) 260 U.S. 393,415,43 S.Ct.. 158. 67 L.Ed.
phrase "A county or city" the former provision 322: Eldridge v, City of Palo Alto (1976) 57
stated "Any county, city, town, Or township." CaI.App.3d 613. 618 et seq., 129 Cal.Rptr. 575.)

358

mobile congestion and air pollution which tiative ordinance. Because of today's hold-
might result bIec;ause adoption of the ordi- ing that the initiative takes precedence over
nance may require many people to commute zoning laws, the legislative scheme of no-
to work in Livermore. tice, hearings, agency consideration, re-
Because of the short time limitation in ports, findings, and modifications can be
the initiative, the proposed initiative ordi- bypassed, and the city council may immedi-
nance must be adopted without the notice, ately adopt the planned unit development
hearings; and reports the Legislature has or, if the council refuses, the voters may
required for zoning changes. The initiative approve.3 However desirable the creation
e- law conflicts with the zoning law by per- of the loophole and the elimination of so-
mitting the voters or the city council to called administrative red tape, it is not for
adopt the ordinance without compliance this court, but for the Legislature to deter-
with the specified procedures designed to mine whether the current housing crisis
insure orderly land use planning. warrants bypassing the zoning laws.4
There ere' additional conflicts and poten- I would affirm the judgment.
tial conflicts. There is no assurance,that
interests of nearby residents will be con- MOSK, Justice (dissenting)
gsidered by the electorate, although such I dissent.
consideration is required. There is nq pro- Limitations on growth may be justified in
cedure under the initiative law for deter- resort communities, beach and lake and
mining compliance with the general plan as mountain sites, and other rural and recrea-
required by statute. Because the city coun- tional areas; such restrictions are generally
cil must either reject or accept the proposed designed to preserve nature's environment
ordinance without change, it does not have for the benefit of all mankind. ,They fulfill
the opportunity to impose conditions and our fiduciary obligation to posterity. As
modifications in the initiative process as Thomas Jefferson wrote, the earth belongs
provided in the zoning statutes. There are to the living, but in usufruct.1
potential conflicts between the initiative But there is a vast qualitative difference
law's requirement that amendment be by when a suburban community invokes an
the voters and the zoninig law's provision elitist concept to construct a mythical moat
for variances, andt between the majority around its perimeter, not for the benefit of
vote of the initiative an(d the zoning law's mankind but to exclude all but its fortunate
specific requirements for interim zoning. current residents.
The conflict between the two statutes is The procedural posture of the ordinance
) clear. The zoning laws establish an admin- does not detain me; the majority is correct
istrative process which must be followed in overruling Hurst v. lIurlingame (1929)
prior to the legislative act of adopting an 207 Cal. 134, 277 P. 308. The Hurst doc-
ordinance. The initiative statutes leave no trine has long outlived its usefulness; it
room to carry out the administrative func- should no longer hobble the initiative proc-'
f- tion. Both the statutes goverriing zoning of ess. Where I part company with the major-
general law cities and governing initiative ity is in its substantive holding that a total
in such cities find their authority in our
Constitution.' Thus, there is no basis for 3. The validity of Hurst was raised for the first
the majority's thesis' suggesting that the time in this court by amicd curiae. Associated
Constitution requires that initiative law H fome Builders did not respohd to- the amid
take precedence over the zoning law inar brief-the interests of Associated Home Build-
take precedence over the zoning law insofar ' ers' members extending beyond the borders of
as there. may be conflict. Rather, the fa- . Livermore. they may well have preferred repu-
rmiliar rule 'that the specific governs the diation of Hurst to invalidation of the Liver-
general in cases of conflict is applicable, more ordinance.
and as held in Horst, the zoning statutes 4. Although the majority hold that the Liver-
must be given effect. The reasoning of. more ordinance does not conflict with Govern-
ment Code sections 65853 -65857, they do not
Hurst is as applicable today as it was when e Codewith potention flicts etween they do not
deal with potential conflicts between the zon-
the c-ase was decidecd in 1929, if not more so ing ordinance before us and other zoning 4tat-
in view of new administrative procedures utes, for example, whether the initiative con-
governing land use planning, and I would filcts with a general plan In violation of
reaffirm Hurst. Government code section 65860, whether (he
ordinance conflicts with section 65858 of that
It is ironic that today's decision, review- code limiting interim ordinances, and whether
ing a "no growth" ordinance, may provide a there is a conflict with'the four-fifths approval
loophole for developers to avoid the numvr- reuirement of that nctionl. In regard to the
loophole In(~~~~~~~latter, the ordinance was approved by approxi-
oub procedures established by the Legisla- mately 55 percent of those voting. 36 percent of
ture which in recent years have made real the registered voters. Presumably, the addi-
estate development so difficult. Seeking tional conflicts may be raised when the case Is
approval of planned unit developments, returned tothe trial court.
land developers with the aid of the building I. Jefferson called this principle "self-evident."
trade unions should have little difficulty in (Laing, Jefferson's Usutrrct Principle (July 3,
sectiring the requisite signatures for an ini- 1976) 223 The Nation Magazine. p.'7.)

359

exclusion of new residents can be constitu- more frequent phenomenon recently, is not
tionally accomplished under a city's police entirely innovative. -,The State of Califor-
power. , nia made 'an abortive effort toward exclu-
The majority, somewhat desultorily, deny sivity back in the 1930s as part of a scheme A
that the ordinance imposes an absolute pro- to stem the influx of poor migrants from
hihition upon population growth or residen- the dust bowl states of the southwest. The
tial construction. It is true that the meas- additional burden these indigent new resi-
ure prohibits the issuance of building per- dents placed on California services and fa-
mits .for single-family residential, multiple cgr at depression ofsthatgperiod In Eb d
residential and trailer residential units until geat depression of that period.
designated public services meet specified wards v. aforna (1941) 314 U.S. 160 62
standards. But to see such res*riction in S.Ct. 164, 86 L.Ed. 119, the Supreme Court
tian t se short o to held, however, that the nature of the union
hbpracti lit y as something ostrhof totvi pro- established by the Constitution did not per-
hibition is to employ ostrich vision.
mit any one state to "isolate itielf from the
First of all, the ordinance provides no difficulties common to all of them by re-
timetable or dates by which the public serv- straining the transportation of persons and
ices are to be made adequate. Thus the property across its borders." The sanction
moratorium on permits is likely to continue against immigration of indigents was inval-
for decades. or at least until attrition' ulti- idatedl.
mately reduces the present. population.. If California could not protect itself from,
Second, it is obvious that no inducement the growth problems of that era, may Liv-
exists for present residents to expendtheir ermore build a Chinese Wall' to insulate'
resources to render facilities adequate for itself. from growth problems today? And if
the purpose of accommodating future resi- Livermore may do so, why not every munic-
dents. It would seem more rational, if im- ipality in Alameda County and'in all other
proved services are really contemplated for counties in Northern California? With a
any time in the foreseeable future, to admit patchwork of enclaves the inevitable result
the new residents'and compel them to make will be creation of an aristocracy housedln
their'proportionate contribution to the cost exclusive suburbs while modest wage carh-
of the educational, sewage and water serv- ers will be confined to declining neighbor-
ices.' Thus it cannot seriously be argued hoods, crowded into sterile,. monotonous,
th'at Livermore maintains' anything other multifamily projects, or assigned to pockets
than total exclusion. of marginal housing on the urban fringe.
The trial court found, inter alia, that the The overriding objective should be to mini-
ordinance prohibited the issuance of build- mize rather than exacerbate social and eco-
ing permits for residential purposes until nomic disparities, to lower barriers rather
certain conditions are met, but the measure than raise them, to emphasize heterogenei-
does not provide that any person or agency ty rather than homogeneity, to increase
is required to expend or commence any choice rather than limit it.
efforts on behalf of the city to meet the I am aware, of course, of the decision in
requirements. Nor is the city itself obliged Village of Belle Terre v. Boraas (1974) 416
to act within any specified time to cure its U.S..1, 94 S.Ct. 1536, 39 L.Ed.2d 797, in
own'deficiencies. Thus, in these circum- which' the Supreme Court, 'speaking
stances procrastination produces its own re- through Justice Douglas, rejected * chal-
ward: continued exclusion. of new resi- lenges to an ordinande restricting land use
dents. to one-family dwellings, with a very'narrow
definition of "family," excluding lodging
The significant omissions, when noted in
relation to the ordinance preamble, reveal or oaipl-dwlling houses, fra The village
Ihat the underlying 'urposo of the multiple-dwelling houses.. The village
that the underlying purpose of the measure
sought to asure that it would never grow
is "to control residential building permits in
much larger than 700 persons living in 220
the Ci ty of Livcrmorc'"-tr sation : to residences. Comparable, although' some
keep newcomers out of the city-and not tohough some
,eep .edcomcru .ut ogrowth was permitted, was the ordinance
solve the purported inadequacies in munici- growth was permitted, was the ordinance
approved in Construction Ind. Assn., Sono-
pal educational, sewage and water services. approved in Construction Assn Son1975)
Livermore concedes no building permits are 522 F. 897. A lso similar alth allow-
522 F.2d 897. Also similar, although allow-
now being issued and it relates no current h d th, was G
ing phased growth, was Golden v. P-lanning
or prospective schedule designed to correct Board of Town of Ramapo (1972) 30 N.Y.2d
its defective municipal services. 359, 334 N.Y.S.2d 138, 285 N.E.2d 29i.2
A municipal policy of preventing acquiSi-
tion and development of property by non- 2. There are other variations in traditional zon-
residents clearly violates article I, Sections 1 ing that attempt to ac'commodate both orderly
and 7, subdivisions (a) and (b), of the Con- development and community concerns: flexible
zoning, compensatory regulations, planned unit
stitution of California. development. density zoning, contract zoning. -
floating zoning and time-phased zoning. Until
Exclusion of unwanted outsiders, while a now total prohibition of all building permits

360

In Belle Terre, Justice Douglas declared, One thing emerges with clarity from the
"The police power is not confined to elimi- foregoing and from numerous related cases:
nationw of' filth, stencfi, and unhealthy access to housing is regarded, by the Su-
places. It is ample to lay out zones where preme Court as a matter of serious social
family values, youth values, and the bless- and constitutional concern. While this in-
C� ings of quiet seclusion 'and Clean air make terest has generally been manifest in the
the area a sanctuary for people. . context of racial discrimination, there is nio
A quiet place. where yards are wide, people valid reason for not invoking the principle
few, and motor vehicles.restricted are legit- when persons of all races and of all econom-
imate guidelines, in a land-use project ad- -ic groups are involved. There are no invar-
dressed to family needs." iable racial or economic characteristics of
This is' a comforting environmentalist the goodily numbers of families which seek
declaration with which few would disagree, social mobility, the opportunities for the
although the result was to allow the village good life available in a sulurban atmo-
of Belle Terre t6 remain an affluent island. sphere, and access to types of housing, edu-
Nevertheless, 'ipreservation of the charac- cation and employment differing from
ter of the community" is a stirring slogan, those indigenous to crowded urban centers.
at least where it is used 'for nothing more There is a plethora of commentary on
harmful than the exclusion of thd'six stu- efforts, in a variety of contexts, of local
dents who rented the large house in Belle communities to discourage the influx of
Terre. Complications arise when ordi- outsiders. In virtually every instance, how-
nances are employed to exclude not merely ever, the cities limited availability of hous-
student lodgers, but all outsiders. While ing; until now it has never been seriously
the affluent may seek a congenial suburban contemplated that a community would at-
atmosphere other than Belle Terre or Liver- tempt total exclusion by refusing all build-
more, what are the alternatives for those in ing permits. (See, e. g., Williams & Dough-
megalopolitan areas who cannot afford sim- ty, Studies in Legal Realism: Mount Lau-
ilar selectivity? rel, .Belle Terre and Berman (1975) 29 Rut-
The right of all persons to acquirehous- gers L.Rev. 73; Note, Phased Zoning: Rcg-
ulation of the Tempo and Seq uence of Land
ing is not a mere esoteric principle; it has Development (1974) 26 Stan.LRev 58
commanded recognition in a wide spectrum
Note, The Rigtht to Travel and Exclusionary
of aspects. In Shelley v. Kraemer (1948) Zonink (1974) 26 Hastings L.J. 849;
334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, race Deutsch, Land Use Growth Controls: A
restrictive covenants were declared to be Case Study of San Jose and Livermore,
constitutionally unenforceable. Chief Jus- California (1974) 15 Santa Clara Law. '1;
'V tice Vinson noted in his opinion that among Schroeder, Public Regulation of Private
the guarantees of the Fourteenth Amend- Land Use, 1973 Law & Soc. Order 747;
ment "are the rights to acquire, enjoy, owvn Large, This Land is Whose Land? � Chang-
and dispose of property." In Reitman v. ing Concepts of Land as Property (1973)
Mulkey (1967) 387 U.S. 369, 87 S.Ct. 1627, Wis.L.Rev. 1039; Gaffrey, C(ontainment
18 L.Ed.2d 830, the Supreme Court upheld Policies for Urban Sprawl, Univ. of Kan.
our invalidation of a ballot proposition, de- Publications, No. 27;' McClaughry, The
daring that "'Neither the State nor any 'New Feudalism (1975) 5 Environmental L.
subdivision or agency thereof shall deny, 673; Kohl, The Environmental Movement:
limit or abridge, directly or indirectly, the What It Might 'Be (1975) 15 Nat.ResJ. 327;
right of any person, who is willing or de- Note, The Right to Travel: Another Consti-
sires to sell, lease or rent any part or all of tutional Standard for Local Land Use Reg-
his real property, to decline tb sell, lease or ulations? (1972) 39 U.Chi.L.Rev. 612; Note,
rent such property to such person or per- The Responsibility of Local Zoning Authori-
sons as he, in his absolute discretion, choos- ties to Nonresident Indigents (1971) 23
es,'" Justice Douglas, in a concurring opin- Stan.L.Rev. 774; Note, Exclusionary. Zon.
ion in Reitman, went even further to insist ing and Equal Protection (1971) 84 Harv.L.
that. "housing is clearly marked with the Rev. 1645; Sager, Tight Little Islands: Ex-
public interest." (Id. at p: 385, 87 S.Ct. at clusionary Zoning, Equal Protection, and
p. 1636.) Again in Jones v.' Mayer Co. the Indigent (1969) 21 Stah.L.Rev. 767.)
(1968) 392 U.S. 409, 418, 88 S.Ct. 2186, 2192, The trend in the more perceptive jurisdic-
20 L.Ed.2d 1189, a case involving racial tions is to prevent municipalities from self-
discrimination in housing, Justice Stewart ishly donning blinders to.obscure the prob-
spoke of the right of all citizens "'to inher- lems of their neighbors, The' Supreme
it, purchase, lease, sell, hold, and convey Court of New Jerseyj as taken the lead in
* real and personal property.'" (Also see frowning upon creation of local exclusive
Buchanan v. Warlcy (19,17) 245 U.S. 60, 38 enclaves and in insisting upon consideration
S.Ct. 16, 62 L.Ed. 149.) of regional housing needs. In Oakwood at
, Madison, Inc. v. Township of Madison (1971)
has never been included amoig acceptable zon- 117 N.J.Super. 11,283 A.2d 3.53, 359, the
Lag schemes.: court held, "In pursuing the valid zoning

361

purpose of a balanced community, a munici-
pality must not ignore housinrg needs, that economic burdens which time and natural
is, its fair proportion of. the obligation to growth invariably bring.' 419 Pa. at 527-
meet the housing needs of its own popula 628, 215 A.2d t 610.
tion and'of the region. Lousing needs are ". . Appellee here has simply
encompassed within the general welfare. made a decision that it is content with
The general welfare does not stop at each things as they are, and that the expense or
municipal boundary." (Italics added.) change in character that would result from
Again in the oft-cited Mt. Laurel case people moving in to find 'a comfortable
(So. Burlington Cty. N.A.A.C.P.- v. Tp. of place to live' are for someone else'to worry
Mt. Laurel (1975) 67 N.J 151, 336 A.2d 713, about. That decision is unacceptable. Sta-
724) the New Jersey Supreme- Court re- tistics indicate that people are attempting
quired that municipalities afford the oppor- to move away from the urban core areas,
tunity for housing, "at least to the extent relieving the grossly overcrowded condi-
of the municipality's fair share of the tions that exist in most of our major cities.'
present and prospective regional need . . . It follows then that formerly 'out-
therefor." (Italics added.) (Also see lying', somewvhat rural communities, are be-
Schere v. Township of Frcehold (1972) 119 coming logical areas for development and
N.J.Super. 433, 292 A.2d 35, 37.) population growth-in a sense suburbs to
the suburbs. - With improvements in region-
* Pennsylvania is another state that has al transportation systems, these 'areas also
forthrightly spoken out against ordinances
"designed to be exclusive and exclusion- are now more accessile to th central city.
ary." In National Land and Investment "In lightof this, Nether Providence
Company v. Kohn (1966) 419 Pa. 504, 215 Township may not permissibly choose to
A.2d 597, 612, a case remarkably similar to only take as many people as can live in
the instant matter, the Easttown communi- single-family housing, in effect freezing the
ty refused to admit new residents "unless population at near present levels. Obvious-
such admittance will not create any addit' ly if every municipality took that view,
tional burdens upon governmental func population 'pread would be completely
tions and services." Justice Roberts, for frustrated. Municipal services mustbe pro-
the Supreme Court, replied- "The question vided somewhere, and if Nether Providence
posed is whether the township can stand in is a logical place for development to take
the' way of the natural forces which send place, it should not be heard to say that it
our growing population into hitherto unde- will not bear its rightful part of the bur-
veloped areas. in search of a comfortable den." (Id. at pp. 398 399; fn." omitted.)
place to live. We have concluded not. A In Girsh the Pennsylvania court added:
zoning ordinance whose primary purpose is "Perhaps in an ideal world, planning and
to prevent the entrance of newcomers in zoning would be done on a regional basis, so
order to avoid future burdens, economic and
otherwise, upon the administration of public that a given community would have apart-
services and facilities cannot be held valid." mens whi a djoining a ommunity would
not. But as.long as we allow zoning to be
In Appeal of Gir(sh (1970) 437 Pa. 237, 263 done community by community,.it is intol-
A.2d 395, the Pennsylvania Suprelne Court erable to allow one municipality (or many
again spoke from a broad perspective.' The municipalities) to close iLb doors at the ex-
community involvedl there barred all apart- pense of surrounding communities and the
ment houses for the identical reasons' ad- central city." (Id. at p. 399, fn. 4.)
vanced by Iivermore here. Said the court Ordinances comparable to those invalida-
with irrefutable logic: "Appellee argues ted in New Jersey and Pennsylvania have
that apartment uses would cause a, signifi- also been held invalid in Michigan (Bristow
cant population increase with a resulting v. City of Woodhaven (1971) 35 Mich.App.
strain on available municipal services and 205, 192 N.W.2d 322), Maryland (Baltimore
roads, and would clash with the existing Planning Com'n v. Victor Development Co.
residential neighborhood. But we explicitly (1971) 261 Md. 387, 275 A.2d 478) and Con-
rejected both these claims in 'National Land, necticut (Beach v. Planning & Zoning Com-
suipra: 'Zoning is a tool in the hands of mission (1954] 141 Conn. 79, 103 A.2d 814).
governmental bodies which enables them to
more effectively meet the demands of
ovolving and growing communities:, It
must not and can not be 'used by those
officials as an instrument by which they
may shirk their responsibilities. Zoning is a
means by *hich a governmental body can
plan for the future-it may not be used as a
means to deny the future. . . ,.Zon-
ing provisions may, not be used . .
to avoid the increased responsibilities and
362

In sum, I realize the easiest course is for
this rcourt to defer to the political judgment
of the townspeople of Livermore, on a they-
know-what's-best-for-them ,theory (Iast-
lake v. Forest Ci'ty Enterplrises, Inc. (1976)
.- - U.S. ---, 96 S.Ct. 2358, 49 L.Ed.2d 132;
James v. Valticrra (1971) 402 U.S. 137, 91
S.Ct. 1331, 28 L.Ed.2d 678). But conceptu-
ally, when a locality adopts a comprehen-
sive, articulated program to prevent any
population growth over the foresecable.fu-
turc, it places its public policy intentions
visibly on the table for judicial scrutiny and
constitutional analysis.
Communities adopt growth limits from a
variety of motives. There may be conser-
vationists genuinely motivated to preserve
general or specific environments. 'There
may be others whose motivation is social
exclusionism, racial exclusion, racial dis-
-enrmination, income segregation, fiscal pro-,
tection, or just fear'of any future change;
'each of these purposes is well served by
growth prevention.
Whatever the motivation, total exclusion
of people from a community is both immor-
al and illegal. (Cai.CoAst. art. I,' �� 1, 7,
subds. (a) & (b).) Courts have a duty to
prevent such practices, while at the same
time recognizing the validity' of genuine
conservationist efforts.
The problem is not insoluble, nor does it
necessarily provoke extreme results. In-
deed, the solution can be relatively simple if
municipal agencies wbuld consider the aspi-
rations of society as a whole, rather than
merely the effect upon their narrow constit-
uency. (See, e. g., A.L.I. Model Land De-
velopment Code, art. 7.)'Accommddation
between environmental 'preservation and
satisfaction of housing needs can be reached
through rational guidelines for land-use de-
cision-making. Ours, of cheurge, i'snot the
legislative function. But two legal inhibi-
tions must be the btnchmark of any such
guidelines. First, any'absolute prohibition
on housing development is presumptively
invalid. And second, local- regulations,
based on parochialism, that limit ppulation
densities in growing suburban areas may be
found invalid unless the community is ab-
sorbing a reasonable share of the region's
population pressures.
Under the foregoing test, the Livermore
ordinance is fatally flawed. I would affirm
the judgment of the trial court.

363